Rechenbach v Bomet & 2 others (Environment and Land Appeal 4 of 2023) [2026] KEELC 3719 (KLR)
The bottom line
#The Environment and Land Court in Nakuru dismissed a landowner's request to pause a judgment against her because she waited three years and no longer occupied the land.
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 application for stay of execution pending appeal is merited
- 2.Whether the court can issue stay of execution orders against declaratory and injunctive orders
- 3.Whether the Appellant met the threshold for stay of execution pending appeal
- 4.Whether the Appellant is entitled to a temporary injunction pending appeal
- 5.Costs of the application
Key legal issues
#Whether the impugned judgment contained a negative or declaratory order incapable of stay
The judgment contained both declaratory and executory orders (a mandatory injunction to vacate), so the court could entertain the stay application
Relying on Katiba Institute, the court distinguished purely declaratory judgments, which merely proclaim a legal relationship without enforceable orders, from executory judgments. Since the trial court not only declared ownership but also ordered the Defendants to vacate, the order was executory and capable of being stayed. The court therefore proceeded to determine the stay application on its merits.
Whether the application was made without unreasonable delay
The application filed about 3 years after judgment was inordinately delayed and the explanation (lost file/delayed ruling) was unsubstantiated
Judgment was delivered on 27th January 2023 and the application filed on 17th December 2025, a period of about 3 years. The Appellant attributed the delay to the disappearance of the court file and delayed delivery of the ruling, but produced no substantiation. The court found the period amounted to inordinate delay, failing a mandatory condition under Order 42 Rule 6.
Whether the Appellant demonstrated substantial loss
She failed, as she was not in possession of the suit property, having vacated in 2016
The Appellant argued the suit property was at risk of sub-division and disposal and that her ownership rights would be extinguished. The Respondent countered that she was not on the land. Since it was undisputed that the Appellant was not in possession, the court held she failed to demonstrate the substantial loss required under Order 42 Rule 6, and that the appeal would not be rendered nugatory without a stay.
Whether a temporary injunction pending appeal should issue
No; the prayer was overtaken by events as the Appellant had already vacated the suit parcel
Under Order 42 Rule 6(6) the court may grant a temporary injunction in its appellate jurisdiction. The Patricia Njeri and Giella principles require a prima facie case, irreparable harm and balance of convenience, and refusal must render the appeal nugatory. Since the Appellant had already vacated the suit property, the court held the grant of a temporary injunction could not apply and declined to dwell further on the prayer.
Legal principles established
#- A judgment containing both declaratory and executory orders is capable of being stayed; only purely declaratory orders are incapable of execution and thus of stay
- An applicant for stay must show filing without unreasonable delay, substantial loss, and willingness to furnish security, and the court must balance the interests of the successful litigant against those of the appellant
- An applicant not in possession of the suit property cannot demonstrate substantial loss for purposes of stay
Court orders
#- 1.The application dated 17th December 2025 is dismissed with costs to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Nakuru
- Nakuru CMC ELC 378 of 2018
- Jurisdiction invoked
- Appellate jurisdiction over subordinate court under Order 42 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the judgment delivered on 27th January 2023 pending appeal
The application was filed about 3 years after judgment, amounting to inordinate delay, and the Appellant, not being in possession of the suit property, failed to demonstrate substantial loss
Temporary injunction pending appeal against the Respondents
The Appellant had already vacated the suit parcel, so the prayer was overtaken by events and she failed to satisfy the Giella conditions
Costs
Application dismissed with costs to the 1st 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.
Consequently, the application dated 17 th December,2025 is hereby dismissed with costs to the 1st Respondent.
It is my opinion that the Appellant has not established that the appeal will be rendered nugatory if the stay of execution is not granted.
This court is of the view that that the period amounts to inordinate delay.
a declaratory order contains no provision for enforcement against the person it is issued thus incapable of being stayed, the impugned judgment contained both declaratory orders and executory orders
the prayer for temporary injunction at this stage is in fact overtaken by events and this court shall not belabor on the same
Issues in the judgment
#The judgment is internally inconsistent as to whether stay is sought of execution or of proceedings
Inconsistent descriptions of the decision under appeal - at one point the Appellant's supporting affidavit refers to a delayed ruling while the judgment itself refers to judgment delivered on 27th January 2023
Uncertain date of decision appealed from - the memorandum of appeal dated 23rd February 2023 is described as being against 'the ruling' delivered 27th January 2023, described elsewhere as 'judgment'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rechenbach v Bomet & 2 others (Environment and Land Appeal 4 of 2023) [2026] KEELC 3719 (KLR)", Case Analysis (2026). ELCA E004 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3719/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.