Momanyi v Ombede (Land Case Appeal E005 of 2026) [2026] KEELC 3037 (KLR)

pending the hearing and determination of this application. 3. That there be a stay of execution of the said Judgment and Decree pending the hearing and determination of the Appeal. 4. That the costs of this application be in the appeal. 2. The application was based on the grounds that the Applicant had lodged an appeal against the whole judgment which appeal raised serious and arguable points of law with high chances of success. Unless stay was granted, execution would proceed and the appeal be rendered nugatory and an academic exercise. The Applicant stood to suffer substantial loss, as the decree affected proprietary rights over land. The application was brought without unreasonable delay. The Applicant is ready and willing to provide security as this Court would order. It was in the interest of justice and fairness that stay be granted. 3. The application was supported by the Affidavit of Lucina Mosinya, the appellant. It was sworn on the same date as the application. It repeated the contents of the application and 2|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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added that the Honourable S.O. Ongeri (SPM) delivered judgment on 22nd January 2026 in Oyugis ELC Case No E012 OF 2023. It was not in her favour. She attached and marked LMM1, a copy of the said Judgement. She was dissatisfied with the whole of the said judgment and have preferred an appeal raising weighty and arguable points of law touching on the doctrine of indefeasibility of title, burden of proof, and the standard required to establish fraud. Her appeal had overwhelming chances of success as the trial court misapplied Sections 24, 25 and 26 of the Land Registration Act and wrongly shifted the burden of proof in allegations of fraud. Unless stay was granted, the Respondent would execute the decree leading to interference with her proprietary rights over the suit property. 4. Further, if execution proceeded, the substratum of the appeal would be destroyed and the appeal rendered nugatory. She in occupation of the suit land and had extensively developed the same by planting maize, and permanent trees. She had a valid tittle to the land. She annexed and marked LMM-2, a copy of the Title deed. She then reproduced two decisions of the Court 3|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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of Appeal about rendering an appeal nugatory and substantial loss. She urged that the application was brought promptly and without delay and land was unique and could not be adequately compensated by damages. She was ready to furnish such security as the court could direct pursuant to Order 42 Rule 6(2)(b) Civil Procedure Rules. 5. This court, upon reading the application brought under Certificate of Urgency on the said date, gave directions, one of which was that the …. “3. Further, it is not disclosed whether Order 42 Rule 6 of the Civil Procedure Rules has been complied with by moving the subordinate Court for the orders sought herein first. 4. ... 5. Parties shall appear virtually on 6th February 2026 at exactly 09:00 AM to submit on compliance with Order 42 Rule 6 of the Civil Procedure Rules and the issue of jurisdiction.” 6. The respondent Patrisiah Ombede Ogongo and filed a replying affidavit is sworn on 4th February 2026 on 5th February 2026. But before the application could be heard in the parties the parties were invited by the court to address on the preliminary 4|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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issue about direction number three about compliance with the order 42 rule six receiver procedure rules. 7. The parties made oral arguments regarding the compliance or otherwise with of Order 42 rule 6 of the Civil Procedure Rules on the part of the appellant. The apparent argued that the provision does not impose a mandatory requirement for a party to move the lower court first an order of stay of execution before moving the appellate court. He admitted that he filed the instant Appeal and was perfectly in order before the court. 8. Further, while it is advisable for a party to seek a stay of execution in the lower court first, there is no legal requirement that the party first complies with that Sub rule 1 and then moves the court appealed. He supported his arguments with the case of Equity Bank Limited versus Taiga company Adams Limited 2006 EK LR. He also relied on the case of Absalom Dorak East Africa brings a Stable Transporters Limited (eKLR) (sic) wherein the court held that the appellate court had original jurisdiction over such matters. 9. Similarly, he relied on the case of Butt versus Rent Restriction Tribunal (sic) wherein, according to them, the 5|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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court had unfettered discretion to grant a stay of execution and further court did not impose any procedural sequence to be followed. He added that they had demonstrated that there was substantial loss which was likely to occur. Further, they did not have to move the lower court to seek a stay of execution of its judgments before applying to the court. They added that it would be a legal absurdity to appeal against a decision and then go to the same court for stay of execution, particularly in a matter the appellant sought to protect land. Further, there would be irreversible prejudice if the order sought one not granted as the land would likely go to the 3 rd parties we relied on the case of Kenya Shell Limited versus Benjamin Karugu [1986] eKLR. 10. On the part of the Respondent they submitted that the appellants had not met the legal requirements of Order 42 Rule 6 of the Civil Procedure Rules. They reproduced it verbatim, before adding that such an application could only be made when the court appealed from had granted or refused the orders sought. They supported the arguments with the case of Paul Ndeti Muasya versus Mohammed Abdulrahim [2002] eKLR 6|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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Appeal number 147 of 2001 (sic) where they argued that the court held that it was a mandatory requirement to first move the Court appealed from, and that failure to do so rendered the application defective. They also relied on the case of Bhutt (supra) and emphasized that the Court of Appeal emphasized that it was esseential in such applications for a party to be adhere to the sequence unless there were exceptional circumstances necessitating the skipping of the filing of the application: it was not in the instant appeal. 11. The appellant made a rejoinder to the submissions. He stated that Order 42 of the Civil Procedure Rules should be read as a whole. Further, the appellant was not seeking an injunction but that the Court of Appeal decisions they cited had been clarified by other decisions and emphasized that in the Bhutt (supra) decision there was no procedural route given. ISSUE, ANALYSIS AND DETERMINATION 12. This Court has considered the preliminary issue herein, the law and the submissions by both counsel. The relevant provisions in the Rules of procedure regarding appeals are 7|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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Order 42 of the Rules. In particular, Order 42 Rule 6(1) provides that: “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 sufficient 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.” 13. It is my humble view that it cannot be gainsaid that the above Rule is mandatory. Further, I hold the view that the Rule is to the effect that before an Appellant aggrieved by an order or decree of a subordinate Court moves the Appellate Court either on a first appeal (where the appeal is first) or on a 8|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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second appeal (where the appeal is preferred as a second one in case there was an earlier one to a Court subordinate to the Superior Court) moves the Superior Court for stay of proceedings or execution he/she/it should have moved the court appealed from for similar orders. Thus, the step is not optional but compulsory. Only upon the fulfilment of that step does the Superior Court become seized of jurisdiction to handle an application for stay of proceedings or execution. This is clearly provided for in the sub-Rule where it provides that “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.” 14. It goes without saying then that an Appellant can only apply to the Appellate Court to set aside the order (of stay of execution or proceedings) of the Court appealed from if he/she/it is aggrieved by such an order. It means further that he/she/it or the adverse party must have moved the subordinate Court, and it ought to have rendered itself on the application, and the party became aggrieved by the decision of that Court and moved the Appellate Court to set aside the 9|Page HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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order or review it. An appellant ought not and should never side-step the subordinate court and attempt successfully to move the appellant for orders he/she should have sought formally in that court. This is akin to forum shopping and a direct call for a breakdown of the rule of law. 15. It bears worth restating that laws are enacted for the proper ordering of, and to avoid arbitrariness in actions of people, in society. While rules of procedure are not to be mistresses to stress and commandeer or constrain free moral agents of reason, they were designed for orderliness, fairness and justice. This court would not wish to be part of anyone who wishes to bring about or back (to the Kenyan society) darks days of encouraging and embedding infractions of the law which judges and judicial officers took an oath to uphold. Thus, in Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral And Boundaries Commission & 6 Others [2013] eKLR, Kiage JA of the Court of Appeal held: “I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, 10 | P a g e HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.” 16. It is my humble opinion that based on the above excerpt, it is clear that both substantive and procedural laws, and indeed 11 | P a g e HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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any other that is constitutional, ought to be followed by all and sundry within the Republic. 17. Thus, regarding compliance with Order 42 Rule 6(1) of the Civil Procedure Rules, the learned judge in Vipingo Ridge Limited V Swalehe Ngonge Mpitta [2021] eKLR held:“A plain reading of the provision requires that before an Applicant seeking stay pending appeal moves the appellate court for stay orders, he/she must first have applied for the orders before the trial court. And there must be evidence that the trial court pronounced itself on the application whether it granted or declined to grant it.12.It appears to me therefore that it would be irregular for such applicant to move the appellate court without first approaching the trial court on the matter and the trial court pronouncing itself on it one way or the other.” 18. Also, in Pius Mbithi & Another v Daniel Mutiria & Another [2017] eKLR, it was held, “I read and understand the rule to dictate that the first port of call by an application for stay pending appeal is the trial court and that once it considers and determines the 12 | P a g e HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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application then an aggrieved party has the liberty to approach this court and have the orders so issued set aside. 17. Put in the context of the matter before me it is clear that the trial court has not been afforded the opportunity to hear and determine any application for stay. That being the position, and being a court of law applying the law as enacted, this court must tell the applicant that the law is for all to be observed and not be side-stepped. I am in no doubt that the application seeking stay before this court as the appellate court is prematurely made and does not lie.” 19. Additionally, in Mwangi v Mokaya (Environment And Land Appeal 17 of 2022) [2022] KEELC 14835 (KLR) (17 November 2022) (Ruling) this Court held that, “A plain grammatical or textual reading of this terminology reading of the text above, particularly, the underlined phrase is to the effect that a party is not permitted to skip the must important point as the first point of call: the respective trial magistrate or judge against whose order or judgment an appeal is preferred. After he or she has moved the Court and his Application is granted or not, depending on how he views 13 | P a g e HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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the decision, then he/she will file another application in the Court appealed to. It is upon this step having been taken that the application for stay of proceedings in the trial can be considered by the appellate Court. Absent of this step, the application filed for stay of execution or proceedings directly to the appealed to is improper.” 20. In the instant Application, the appellant does not deny or even submit to the contrary that he did not move the trial court first for its determination on whether or not it was to grant an order of stay of enforcement its. He was required to do so. It therefore means his application was made contrary to the requirements of Order 42 Rule 6(1) of the Civil Procedure Rules. It means further that as the Respondent argued, the Application is premature, incompetent and bad in law. I so find, and strike out the instant application for being incompetent. However, the appellant is granted a temporary stay of execution of the decree for only fifteen (15) days in order to elect on what to do over this matter. Additionally, he is granted only thirty (30) days to file the Record of Appeal. The matter 14 | P a g e HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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shall be mentioned on the 4th of June 2026 for admission of the appeal if compliance is made. 21. Orders accordingly. Ruling dated, signed and delivered virtually via the Teams Platform this 30th day of April 2026. Hon. Dr. iur Nyagaka Judge From 1:33 PM, in the presence of, Mosota Advocate for the Appellant Omuthe Advocate for Respondent 15 | P a g e HOMA BAY ELC LAND APPEAL CASE NO E005 OF 2026 – RULING D.O.D 30.4.2026

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