Kitayi v Psenjen (Sued as the Personal Representative of Enock M. Psenjen (Deceased) ) & 2 others (Enviromental and Land Originating Summons E005 of 2022) [2026] KEELC 2224 (KLR)

has not met the threshold to warrant stay orders, and that she is not a party to Kitale ELC No. 136 of 2006, where existing stay orders were granted. Further, the respondent deposes that this court dismissed the applicants’ application for stay of these proceedings by a ruling dated 9/6/2025 and marked as RNK-1, which the applicants did not challenge. 6. The respondent says that the applicants have been indolent and have failed to explain an inordinate delay in filing this application, for this court to enlarge the time; they have not shown that the intended appeal is arguable and likely to succeed. 7. The respondent deposes that she bought a portion of the land decreed to the 3rd defendant in Kitale ELC No. 136 of 2006, to which the applicants have failed to demonstrate the prejudice they stand to sufier if the orders sought are not granted. 8. The respondent terms the application as an afterthought, mischievous, and made in bad faith, after the Notice of Appeal by the 3rd defendant dated 4/2/2026 and without leave, contrary to Rule 79(1) of the Court of Appeal Rules. The said notice is attached as annexure marked RNK-2. 9. Further, the respondent depones that she is entitled to enjoy the fruits of her judgment; that the sword of justice cuts both ways; litigation should come to an end, and the court should prevent an abuse of its process. 10. The 3rd defendant did not oppose the application. 11. Through written submissions dated 13/2/2026, the applicants submit on two issues for determination. On whether this court should grant a stay pending appeal, the applicants submit that Section 3A of the Civil Procedure Act confers upon the court inherent powers to make such orders as may be necessary to meet the ends of justice. 12. The applicants also submit that Section 95 of the Civil Procedure Act empowers the court to enlarge time prescribed or fixed by any order of the court or by the Civil Procedure Rules, while Order 50 Rule 6 of the Civil Procedure Rules governs applications for extension of time. Reliance is placed on Butt -vsRent Restriction Tribunal [1982] KLR 417, Stanley Kang’ethe Kinyanjui -vs- Tony Keter & 5 Others [2013] eKLR, and James Gitonga -vs- Trustees of the Agricultural Society of Kenya [2015] KEELRC 638 (KLR) to submit that the intended appeal is arguable, it will be rendered nugatory without a stay, and that the respondent shall not sufier any prejudice. 13. On extension of time to file a notice of appeal, the applicants submit that the overriding consideration is whether an extension shall serve the ends of justice, the length and reasons for the delay, which the applicants attribute to miscommunication. The applicants rely on Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2 EA 231, Fakir Mohamed -vs- Joseph Mugambi & 2 others [2005] KECA 340 (KLR), Shah -vs- Mbogo & Another [1967] EA 116, Ngatuny & 2 others -vs- Mosoiko & 2 others [2024] KECA 1656 (KLR), Article 159(2)(d) of the Constitution and Obado -vs- Oyugi & 2 others [2014] KESC 25 (KLR). 14. In written submissions dated 13/2/2026, the respondent submits that the applicants have not demonstrated substantial loss, ofiered any security, or filed the application without unreasonable delay; the delay is not explained, contrary to Order 42 Rule 6(2)(a) & (b) of the Civil Procedure Rules. 15. Further, the respondent submits that this court is functus oficio and therefore lacks the jurisdiction to grant the prayers sought. The application has been brought after an unreasonable delay, which is not explained. The respondent submits that the application is an afterthought, made in bad faith, is mischievous, and an abuse of the court process. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2224/eng@2026-04-22 2

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16. The principles governing the grant of stay of execution pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules. 17. An applicant has to satisfy the court that: i. Substantial loss may result unless the order is made. ii. The application has been made without unreasonable delay. iii. Security for the due performance of the decree has been given. 18. On delay, the judgment was delivered on 5/11/2025, while the present application was filed on 6/2/2026. In this court’s view, this delay, which is unreasonable and inordinate, has not been suficiently explained. 19. The Court of Appeal in Kenya Shell Ltd -vs- Kibiru & Another [1986] KLR 410 [1986] KECA 94 (KLR) held that substantial loss is what has to be prevented by preserving the status quo since such loss would render the appeal nugatory. There is no material evidence placed before this court to show that the applicants would sufier prejudice of such a magnitude as would render the appeal nugatory if execution proceeds. 20. Security for the due performance of the decree is a mandatory requirement under Order 42 Rule 6(2) (b) of the Civil Procedure Rules. In Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR, the court held that the security needed under Order 42 of the Civil Procedure Rules guarantees the due performance of such decree or order as may ultimately be binding on the applicant. 21. The applicants have not made any concrete ofier of security. The requirement is not merely procedural, but rather goes to the heart of judicial discretion under Order 42 Rule 6(2)(b) of the Civil Procedure Rules. 22. The guiding principle is for a court to strike a balance between the successful party’s right to enjoy the fruits of judgment and the appellant’s right to pursue an appeal without undue hardship. See Butt -vs- Rent Restriction Tribunal (supra) and Stanley Kang’ethe Kinyanjui -vs- Tony Keter (supra). The applicants have not attached a draft memorandum of the appeal for the court to determine if the intended appeal is arguable or not. 23. Section 7 of the Appellate Jurisdiction Act provides that the High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court, or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired. 24. The court in Mwangi -vs- Kenya Airways Ltd [2003] KLR, held that matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal, succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted. 25. The applicants in their notice of motion are seeking an extension of time within which to file an appeal alleging miscommunication and the failure of the advocate to file a notice of appeal. The two are distinct. 26. A case belongs to a party and not their advocate. The applicants have not stated why they had to wait for 2 months to follow up on their case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2224/eng@2026-04-22 3

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27. There is already a notice of appeal dated 10/11/2025 by the 3rd defendant. The applicants are at liberty to seek leave at the appellate court for joinder in the said appeal. 28. The upshot is that the application dated 5/2/2026 is found to be devoid of merit and is dismissed with costs. 29. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 22ND DAY OF APRIL 2026. In the presence of: Court Assistant - Dennis Miss Lichuma for the 1st and 2nd defendans/applicants present Bikundo for the plaintifi present Nabwile for Kidiavai for the 3rd defendant present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2224/eng@2026-04-22 4

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