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ELCAllowedELCLC E010 OF 2023· [2026] KEELC 6119 (KLR)

Philip Kipkosgei Chumba v Kimeto Arap Murei

Environment and Land Court of Kenya
29 September 2026
1,977 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court froze all dealings with a disputed Nandi parcel, protecting an adverse possession claimant's appeal even after his case was dismissed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kapsabet (Ongondo J) on a Notice of Motion dated 15th June 2026 by Philip Kipkosgei Chumba, the applicant/plaintiff whose originating summons in an adverse possession dispute over land parcel Nandi/Ndalat/269 had been dismissed with each party bearing own costs by judgment delivered on 9th June 2026. The applicant sought restraint orders against the respondent/defendant Kimeto Arap Murei from dealing with the suit property, and a direction to the Land Registrar, Nandi County not to register any dealings, pending an intended appeal to the Court of Appeal. The respondent opposed, arguing the court was functus officio, that no positive order existed to stay, that Order 42 Rule 6(2) conditions were unmet, and that the memorandum of appeal was not attached. The court held that while a stay of execution is unavailable on a negative order (following WECO v Oronga), it retained jurisdiction under section 13(7) of the Environment and Land Court Act and sections 1A, 1B, 3 and 3A of the Civil Procedure Act to grant conservatory orders post-judgment to preserve the substratum of an intended appeal, relying on the Supreme Court's decision in Moi High School Kabarak v Bell, Katiba Institute, Erinford Properties and Shade Manufacturers. Finding a real risk of alienation and third-party interests, the court allowed the application, restrained dealings with the suit property, directed the Land Registrar not to register any dealings, and ordered costs of the application to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the court, having dismissed the suit, retained jurisdiction to grant preservation/conservatory orders pending an intended appeal

Holding

Yes. The court distinguished a stay of execution (unavailable on a negative order) from conservatory orders under its statutory and inherent jurisdiction under section 13(7) of the ELC Act and sections 1A, 1B, 3 and 3A of the Civil Procedure Act.

Reasoning

The court noted the judgment of 9th June 2026 contained no positive orders for enforcement, so a stay of execution could not issue per WECO v Oronga. However, section 13(7) of the Environment and Land Court Act and the court's inherent jurisdiction empower it to make ancillary orders preserving the subject matter of litigation pending appeal, as affirmed by the Supreme Court in Moi High School Kabarak v Bell.

p. 9
02

Whether the property was at risk such that conservatory orders were deserved

Holding

Yes. The court found the disputed property may be permanently alienated or disposed of before the intended appeal is heard, and that the applicant had prosecuted his appellate rights without delay.

Reasoning

The respondent had sought extraction of a decree, demonstrating an intention to act on the judgment. The court had earlier issued status quo orders on 21st September 2023 maintaining the plaintiff in possession. Citing Erinford Properties and Shade Manufacturers, the court found a real risk of alienation or creation of third-party interests that would render the appeal nugatory.

p. 11

Legal principles established

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  • A stay of execution cannot be granted on a negative order as there is nothing positive to stay or enforce
  • Conservatory orders may be deployed post-judgment to preserve the substratum of an intended appeal

Court orders

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  1. 1.Pending the hearing and determination of the intended appeal, the Respondent, his servants, agents and/or anyone acting under his authority be restrained from selling, transferring, charging, leasing, subdividing, alienating, wasting, evicting the Applicant from, or otherwise interfering with land parcel number Nandi/Ndalat/269
  2. 2.The Land Registrar, Nandi County shall not register any transfer, subdivision, charge, lease transmission, discharge of caution, restriction or any other dealing affecting land parcel number Nandi/Ndalat/269 pending the hearing and determination of the intended appeal
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6(2)
  • Civil Procedure Rules 2010Order 42 Rule 6(4)
  • Civil Procedure Rules 2020Order 42 Rule 6(6)
  • Environment and Land Court ActSection 13(7)
  • Environment and Land Court ActSection 3
  • Civil Procedure Act (Chapter 21 Laws of Kenya)Sections 1A, 1B, 3 and 3A
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (11)

  • Moi High School, Kabarak & another vs Bell & 2 others
    (2013) eKLR / {2013} KESC 12 (KLR)

    Court's inherent jurisdiction to make essential or ancillary orders to safeguard the character of an appeal

  • RWW vs EKW
    {2019} KEHC 6523 (KLR)

    Purpose of interim relief pending appeal is to preserve the subject matter and balance competing interests

  • Barthlemew Mwanyungu & 3 others vs Florence Dean Karimi
    {2019} KEELC 4687 (KLR)

    Under Order 42 Rule 6(6), injunction power exists only when exercising appellate jurisdiction (respondent's citation)

  • Vishram Ravji Halal vs Thornton & Turpin
    (1990) KLR 365

    Rendering appeal nugatory and arguable grounds (respondent's citation)

  • Halsbury's Laws of England 3rd Edition, Volume 21 paragraph 739

    Principles of injunction (respondent's citation)

  • Nguruman Ltd vs Jan Bonde Nielsen & 2 others
    (2014) eKLR

    Principles of injunction (respondent's citation)

  • Western College of Arts and Applied Sciences (WECO) vs Oronga
    {1976} KECA 15 (KLR)

    Stay of execution cannot issue on a negative order

  • Katiba Institute vs Attorney General & 9 others
    (2018) KLR

    Conservatory orders can be deployed post-judgment to preserve the substratum of an intended appeal

  • Board of Governors, Moi High School, Kabarak & another vs Bell & 2 others
    {2013} KESC 12 (KLR)

    Inherent jurisdiction to make ancillary orders safeguarding the character of the appeal

  • Erinford Properties Ltd vs Cheshire County Council
    (1974) 2 All ER 448

    Preservation of disputed property pending appeal where it may be alienated

  • Shade Manufacturers and Hotel Limited vs Serah Mweru Mutuu & 3 others
    {2018} KECA 205 (KLR)

    Risk of disposal of property before appeal is heard

Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act, 2015 and sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Chapter 21)

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, "Philip Kipkosgei Chumba v Kimeto Arap Murei", Case Analysis (2026). ELCLC E010 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6119/eng@2026-09-29

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