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ELCDismissedNot stated on the face of the ruling (Kakamega suit; referred to as 'this suit')

Tsalia & another v Munanga & another (Enviromental and Land Originating Summons 110 of 2019) [2026] KEELC 3259 (KLR)

Environment and Land Court
20 May 2026
1,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed all three applications because the plaintiffs had no pending appeal and showed no good faith in paying costs.

What this practically means

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Executive summary

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This ruling by A. Nyukuri J of the Environment and Land Court at Kakamega, delivered on 20th May 2026, determined three applications by the plaintiffs: one dated 13th June 2024 seeking stay of execution of the judgment and stay of assessment of the bill of costs pending a ruling in Kakamega High Court Succession Cause No. 215 of 2023; one dated 2nd March 2025 seeking leave to liquidate taxed costs of Kshs. 120,000/= by monthly instalments of Kshs. 3,000/=; and one dated 30th April 2025 seeking to set aside or vary orders of 3rd April 2025 requiring payment of Kshs. 60,000/= within 30 days as a condition of interim stay. The respondents, through counsel Mr. Javan J.O. Mukavale, opposed all three, arguing the suit was fully concluded, the applicants had repeatedly abused process, and had never paid anything towards costs. The court framed a single issue: whether the applicants deserved the orders sought. On stay, it held that stay of execution requires the decision to be under contention through appeal or review under Order 42 rule 6 of the Civil Procedure Rules; none existed, and no nexus with the succession cause was shown. The instalment prayer was rejected as unreasonable - it would span 40 months, violating the respondents' Article 48 right of access to justice - and made without good faith, the applicants having paid nothing, not even their proposed instalment. The setting-aside application was overtaken by events, as the applicants had defaulted and execution was to issue on default. All three applications were dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants deserve the orders sought in the three applications dated 13th June 2024, 2nd March 2025 and 30th April 2025

Key legal issues

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01

Whether stay of execution pending a succession cause ruling could be granted

Holding

Stay declined; no appeal or review was pending and no nexus between the judgment and the succession matter was shown

Reasoning

The court held that stay of execution is properly tied to a decision under contention through appeal or review, as provided under Order 42 rule 6 of the Civil Procedure Rules. Since the suit had been fully concluded, with a prior review application dismissed, and no appeal lay, the stay prayer was misplaced and unjustified.

p. 3
02

Whether costs could be paid by instalments of Kshs. 3,000/= per month

Holding

Rejected as unreasonable and made without good faith

Reasoning

The court found that 40 monthly instalments would unreasonably delay the respondents and violate their Article 48 right of access to justice. The applicants had paid nothing towards the costs, not even their own proposed instalment, demonstrating lack of good faith.

p. 3
03

Whether the conditional stay orders of 3rd April 2025 should be set aside

Holding

Application overtaken by events; default triggered execution

Reasoning

The orders of 3rd April 2025 were interim, granting conditional stay pending hearing of the instalment application on condition the applicants pay Kshs. 60,000/= in 30 days. Having defaulted, and the application having been heard inter partes with execution to issue on default, the setting-aside prayer could no longer be granted.

p. 3

Legal principles established

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  • Stay of execution may only be ordered where the decision is in contention through appeal or review; absent an appeal, a stay prayer lacks foundation
  • Instalment payment of costs must be reasonable in duration and made in good faith, otherwise it infringes the decree-holder's right of access to justice under Article 48

Court orders

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  1. 1.Prayer for stay of execution and stay of assessment of the bill of costs dated 18th April 2024 declined
  2. 2.Prayer for leave to liquidate costs of Kshs. 120,000/= by monthly instalments of Kshs. 3,000/= rejected
  3. 3.Application dated 30th April 2025 seeking to set aside, vary or discharge the orders of 3rd April 2025 dismissed as overtaken by events
  4. 4.All three applications dated 13th June 2024, 2nd March 2025 and 30th April 2025 dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Inherent and case-management jurisdiction over the suit; Article 48 of the Constitution of Kenya invoked on access to justice

Relief refused

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Stay of execution of the judgment and stay of assessment of the bill of costs pending ruling in Kakamega HCC Succession Cause No. 215 of 2023

No appeal or review pending and no nexus shown between the judgment and the succession cause

p. 3

Leave to pay costs of Kshs. 120,000/= by monthly instalments of Kshs. 3,000/=

Would take 40 months and violate the respondents' right of access to justice; no good faith shown by the applicants

p. 3

Setting aside, varying or discharging the orders of 3rd April 2025 requiring payment of Kshs. 60,000/= in 30 days

Overtaken by events since the applicants defaulted and execution to issue in the event of default

p. 3

Costs

All three applications dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the instant case there is no appeal against the judgment or the taxation of costs and therefore the prayer for stay is misplaced, unjustified, lacks foundation and is hereby declined.
p. 3Stay of execution
The delay of 40 months will be a violation of the respondents' right to access to justice guaranteed under Article 48 of the Constitution of Kenya.
p. 3Instalment payments and access to justice
Ultimately, I find no merit in the applications dated 13th June 2024; 2nd March 2025 and 30th April 2025, which I hereby dismiss with costs to the respondents.
p. 3Final orders

Issues in the judgment

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minor

Ruling alternates between '13th June 2024' and '13th June 2025' for the same application

minor

Dates of 3rd April 2025 and 3rd April 2026 both used for the same orders

minor

Succession cause number given as 215 of 2023 and 215 of 2003 in different paragraphs

minor

Respondents' replying affidavit dated '26th May 2026' appears to be a typographical error given the application was of 2nd March 2025

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tsalia & another v Munanga & another (Enviromental and Land Originating Summons 110 of 2019) [2026] KEELC 3259 (KLR)", Case Analysis (2026). Not stated on the face of the ruling (Kakamega suit; referred to as 'this suit'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3259/eng@2026-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.