Kitayi v Psenjen (Sued as the Personal Representative of Enock M. Psenjen (Deceased) ) & 2 others (Enviromental and Land Originating Summons E005 of 2022) [2026] KEELC 2224 (KLR)
The bottom line
#The Kitale Environment and Land Court refused to pause enforcement of a land judgment, finding the applicants waited too long and offered no security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should grant a stay of execution of the judgment delivered on 5/11/2025 pending appeal
- 2.Whether the court should enlarge time for the applicants to file an appeal
Key legal issues
#Whether the applicants demonstrated substantial loss justifying stay of execution
No substantial loss of a magnitude rendering the appeal nugatory was demonstrated
Following Kenya Shell Ltd v Kibiru, substantial loss is what must be prevented by preserving the status quo because such loss would render the appeal nugatory. The court found no material evidence of prejudice of that magnitude if execution proceeds. The applicants also failed to offer any security, which is mandatory under Order 42 Rule 6(2)(b).
Whether the application was made without unreasonable delay
The delay from judgment on 5/11/2025 to application on 6/2/2026 was inordinate, unreasonable and insufficiently explained
The judgment was delivered on 5/11/2025 and the application filed on 6/2/2026. The claimed miscommunication with counsel did not explain why the applicants waited two months to follow up on their case. A case belongs to the party, not the advocate, so advocate negligence does not excuse the delay.
Whether time should be enlarged for filing an appeal
Extension refused; the applicants may seek joinder in the 3rd defendant's existing appeal
Applying Mwangi v Kenya Airways, the court weighed the length and reason for delay, chances of success and prejudice. There was already a notice of appeal dated 10/11/2025 by the 3rd defendant, and the applicants had not attached a draft memorandum of appeal to show the intended appeal was arguable.
Legal principles established
#- An applicant for stay of execution pending appeal must show substantial loss, that the application was made without unreasonable delay, and must offer security for the due performance of the decree
- Security for due performance of the decree is a mandatory requirement that goes to the heart of judicial discretion
- A case belongs to a party and not their advocate; miscommunication with counsel does not excuse a party's inaction
Court orders
#- 1.The application dated 5/2/2026 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3A and 95 of the Civil Procedure Act, Order 50 of the Civil Procedure Rules; Section 7 of the Appellate Jurisdiction Act (extension of time)
Relief refused
#Stay of execution of the judgment delivered on 5/11/2025 pending appeal
Inordinate and unexplained delay; no demonstration of substantial loss rendering the appeal nugatory; no offer of security
Enlargement of time to file an appeal/notice of appeal
The delay of about two months was unreasonable and unexplained; a notice of appeal already exists by the 3rd defendant and the applicants may seek joinder at the appellate court
Costs
The application dated 5/2/2026 is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the application dated 5/2/2026 is found to be devoid of merit and is dismissed with costs.
A case belongs to a party and not their advocate. The applicants have not stated why they had to wait for 2 months to follow up on their case.
The requirement is not merely procedural, but rather goes to the heart of judicial discretion under Order 42 Rule 6(2)(b) of the Civil Procedure Rules.
The guiding principle is for a court to strike a balance between the successful party’s right to enjoy the fruits of judgment and the appellant’s right to pursue an appeal without undue hardship.
Issues in the judgment
#The case number and full case title of the present suit are not stated anywhere in the judgment; only the related suit Kitale ELC No. 136 of 2006 is named.
The judgment does not disclose which court delivered the judgment of 5/11/2025 whose execution is sought to be stayed, making the precise appellate posture (and hence the applicable extension-of-time regime) not fully explicit.
Contradictory dates regarding notices of appeal: paragraph 8 refers to a Notice of Appeal by the 3rd defendant dated 4/2/2026, while paragraph 27 refers to a notice of appeal dated 10/11/2025 by the 3rd defendant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitayi v Psenjen (Sued as the Personal Representative of Enock M. Psenjen (Deceased) ) & 2 others (Enviromental and Land Originating Summons E005 of 2022) [2026] KEELC 2224 (KLR)", Case Analysis (2026). Not stated in the judgment (the court sits at Kitale, ELC; Kitale ELC No. 136 of 2006 is a related suit referenced in submissions, not this case number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2224/eng@2026-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.