Lutta v Olunga (Enviromental and Land Originating Summons 16 of 2020) [2025] KEELC 8220 (KLR)

3. The application was opposed. The defendant filed a replying afidavit dated 16th October 2024. He stated that the applicant’s suit was dismissed so there is nothing to be stayed. That the applicant has never cultivated or used the suit property and that in 2005 the respondent stopped the applicant’s brother one Mulama from cultivating the suit property; and that since then none of the applicant’s family members has been on the suit property. Further that there is nothing to demonstrate the intended appeal or intended review and that the prayers sought are merely speculative. 4. The application was disposed by way of written submissions. On record are submissions filed by the applicant dated 5th October 2025 and the respondent’s submissions dated 16th October 2025 both of which this court has duly considered. Analysis and determination. 5. The court has carefully considered the application, response thereto and submissions. The issues for the court’s determination are as follows; a. Whether the applicant deserves leave to change his advocates at this stage b. Whether the applicant has met the threshold for grant of orders of stay of execution pending intended appeal and intended review; and c. Whether the court should grant orders of maintenance of status quo pending intended appeal and intended review. 6. Order 9 Rule 9 of the Civil Procedure Rules requires a party who wishes to change their advocate or act in person, having previously been represented by an advocate until after delivery of judgment, to do so only with leave of court. Legal representation by counsel of one’s choice is a Constitutional right which the applicant is entitled to. This prayer having not been opposed and there being no reason to deny the applicant the right to be represented by the firm of Ouma Okutta & Associates Advocates, I find and hold that that prayer is merited and the same is hereby allowed. 7. Concerning stay of execution pending appeal, Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of execution pending appeal as follows; Stay in case of appeal [Order 42, rule 6] (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for suficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 2. No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8220/eng@2025-11-20 2

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8. For an applicant to succeed in seeking stay pending appeal, they ought to demonstrate that they stand to sufier substantial loss if stay is not granted; that they have sought for stay without unreasonable delay and show willingness to provide security for the due performance of the decree that may issue against them. 9. The Court of Appeal enunciated principles to be considered in determining whether to grant or refuse stay of execution pending appeal in Butt vs Rent Restriction Tribunal [1979]KLR as follows: 10. “ a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse." In Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 the court discussed the element of substantial loss as follows; “ Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.” 11. In the instant matter, the applicant stated that he has been on the suit property with his family since 1971 and that if stay is not granted the respondent will proceed to execute the decree herein whereof he will sufier substantial loss. 12. The court has considered the judgment delivered herein. In this case, the plaintifi had sued the defendant claiming ownership of the suit property on the basis of adverse possession. That claim was dismissed vide the judgment of the court delivered on 29th April 2024. Therefore, the order made in the judgment being a dismissal order is a negative order. There is no positive order made by court that is capable of being stayed. In the premises, therefore the prayer for stay of execution pending appeal or review is not merited and the same is therefore declined. 13. On the prayer for maintenance of status quo, I take the view that an order of status quo is in the nature of a temporary injunction in so far as it bars parties from interfering with the suit property. The power of this court to grant a temporary injunction is provided for in Order 40 Rule 1 and Order 42 Rule 6 (7) of the Civil Procedure Rules. Order 40 Rule 1 of the Civil Procedure Rules provides that; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8220/eng@2025-11-20 3

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Cases in which temporary injunction may be granted [Order 40, rule 1] Where in any suit it is proved by afidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances afiording reasonable probability that the plaintifi will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. Order 42 Rule 6 (7) of the Civil Procedure Rules provides that; Stay in case of appeal [Order 42, rule 6] (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for suficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 3. …….. 4. …….. 5. ……. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” 14. Therefore, this court has power to grant injunction while exercising its original jurisdiction in a case where the suit is yet to be heard; and also, while exercising its appellate jurisdiction in regard to a decision from the subordinate court where an appeal is pending. There is no provision granting power to this court to grant an injunction pending hearing of an appeal to the Court of Appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8220/eng@2025-11-20 4

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15. To grant a temporary injunction, an applicant must demonstrate prima facie case, irreparable loss and show that the balance of convenience tilts in favour of granting an injunction. (See Giella v Cassman Brown [1973] EA 358). In the instant matter, this court has already determined the issues, disposed the suit herein and pronounced itself on the rights of the parties and found in its judgment of 28th June 2022 that the plaintifi failed to prove his claim of adverse possession. Therefore, the court having determined the rights of parties substantively, fully and conclusively having heard the suit on merit, cannot revert to the issue of whether or not the applicant has a prima facie case. That is a matter for the Court of Appeal and not this court. In the premises, I find and hold that this court has no jurisdiction to grant orders of status quo pending hearing of the appeal at the Court of Appeal. 16. Regarding the prayer for stay of execution and grant of status quo orders pending intended review, no application for review is pending before this court and no order capable of being stayed was made in the judgment of the court. Therefore, the applicant is not entitled to stay of execution and or maintenance of status quo pending intended review. 17. In the premises, save for the order that the firm of Ouma Okutta & Associates Advocates is granted leave to come on record for the plaintifi in the place of M. Kiveu & Company Advocates in this matter, I find and hold that the application dated 19th May 2024 lacks merit and the same is hereby dismissed with costs. 18. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF NOVEMBER, 2025 A. NYUKURI JUDGE In the presence of; Mr. Okutta for the plaintifi Mr. Wanyama for the defendant Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8220/eng@2025-11-20 5

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