Tsalia & another v Munanga & another (Enviromental and Land Originating Summons 110 of 2019) [2026] KEELC 3259 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether stay of execution pending a succession cause ruling could be granted
Stay declined; no appeal or review was pending and no nexus between the judgment and the succession matter was shown
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.
Whether costs could be paid by instalments of Kshs. 3,000/= per month
Rejected as unreasonable and made without good faith
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.
Whether the conditional stay orders of 3rd April 2025 should be set aside
Application overtaken by events; default triggered execution
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.
Legal principles established
#- 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
#- 1.Prayer for stay of execution and stay of assessment of the bill of costs dated 18th April 2024 declined
- 2.Prayer for leave to liquidate costs of Kshs. 120,000/= by monthly instalments of Kshs. 3,000/= rejected
- 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.All three applications dated 13th June 2024, 2nd March 2025 and 30th April 2025 dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
Costs
All three applications dismissed with costs to the respondents.
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.
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.
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.
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.
Issues in the judgment
#Ruling alternates between '13th June 2024' and '13th June 2025' for the same application
Dates of 3rd April 2025 and 3rd April 2026 both used for the same orders
Succession cause number given as 215 of 2023 and 215 of 2003 in different paragraphs
Respondents' replying affidavit dated '26th May 2026' appears to be a typographical error given the application was of 2nd March 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.