Ekandi v Etirikia (Environment and Land Appeal E058 of 2025) [2026] KEELC 3736 (KLR)

(c) In default of any of the above or any instalment under (b) above, the decree holder shall be at liberty to execute and in this regard the judgment debtor shall stand committed to civil jail, (d) I make no order as to costs.” 3. Aggrieved by the ruling, the decree-holder brought this appeal vide a memorandum of appeal dated 13/8/2025. Upon being served with the memorandum of appeal, the applicant/judgment-debtor brought an application dated 30/10/2025 seeking orders staying enforcement of the above orders pending the hearing and disposal of this appeal. The said application is the subject of this ruling. 4. The application was premised on the grounds outlined in the motion and in the afidavit of the applicant, dated 30/10/2025. It was canvassed through written submissions dated 20/4/2026, filed by M/s Otieno C & Co Advocates. In summary, the case of the applicant is that, the trial court delivered the impugned ruling on 31/7/2025. He ofiered a reasonable proposal to the appellant’s counsel on the mode of satisfying the decretal amount but he was unable to honour the proposal due to financial challenges which he experienced after losing an election in 2017. He has partially satisfied the decree by “depositing” Kshs110,000. He is willing to pay the decretal amount if given more time or in the alternative, he can transfer land parcel Tigania West/Akithi III 1948 to the decree-holder. It is his case that no prejudice will be sufiered by either party if the stay order is granted. 5. The decree-holder opposed the application through his replying afidavit dated on 1/12/2025 and written submissions dated 1/12/2026, filed by M/s Joshua Mwiti Law Advocates. The case of the decree-holder is that judgement in the trial court was delivered on 25/5/2021. The applicant subsequently filed an appeal, which was disposed on 18/1/2023. 6. The decree-holder states that the applicant has not bothered to honour the decree and the orders of the trial court, hence he does not deserve the orders sought. He urges the court to reject the application. 7. The court has considered the application; the response to the application; and the parties’ respective submissions. The key issue to be determined in this ruling is whether the application dated 30/10/2025 meets the criteria upon which this court exercises jurisdiction to grant an order of stay of execution pending the hearing and disposal of an appeal before it. I will be brief in my analysis. 8. The relevant criteria has been legislated under Order 42 rule 6 (2) of the Civil Procedure Rules which provides as follows: “ No order for stay of execution shall be made under subrule (1) unless— 9. 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.” Does the application under consideration meet the above criteria? First, whereas the applicant seeks an order of stay of execution of the orders made in the ruling dated 31/7/2025 pending the hearing and determination of this appeal, he moved the court under Order 40 of the Civil Procedure Rules. Order 40 deals with this court’s jurisdiction to grant an interlocutory injunction when exercising jurisdiction as a trial court. It does not confer jurisdiction upon this court to grant an order of stay of execution pending the hearing and disposal of an appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3736/eng@2026-06-08 2

page 2 of 3

10. Secondly, in his submissions dated 20/4/2026, the applicant wholly argued a plea for interlocutory injunction. He identified the following as the verbatim issue that fell for determination in the application: “ Whether the applicant has met the requisite requirement for grant of injunctive orders/ stay?” 11. The applicant cited the principle in Giella v Cassman Brown & Co Ltd (1973) EA 358 and submitted on prima facie case; inadequacy of damages; and the balance of convenience. The application dated 30/10/2025 was a plea for an order of stay of execution pending the hearing and disposal of this appeal. It was not a plea for an order of interlocutory injunction. Clearly, there was a misapprehension of the plea that was before court. 12. That is not all. The applicant does not have a cross-appeal. He is not an appellant. He was not aggrieved by the ruling of 31/7/2025. If he was aggrieved, he elected to live with the ruling. There is no appeal of his own upon which he can anchor the plea for an order of stay of execution. 13. Fourthly, the applicant is a judgment debtor. He exercised the right of appeal against the substantive judgment. The appeal was considered and dismissed for lack of merit vide a judgment of this court. He was required to satisfy the money decree. In the circumstances, he cannot be said to have demonstrated the element of likely substantial loss pending disposal of “his appeal” as contemplated under Order 42 rule 6 (2) of the Civil Procedure Rules. 14. Fifth, the applicant elected to say nothing in relation to the requirement for security. He said nothing in terms of the period of three months that lapsed before the application was brought. 15. Consequently, the finding of the court is that the application dated 30/10/2025 does not meet the criteria upon which this court exercises jurisdiction to grant an order of stay of execution pending the hearing and disposal of an appeal before it. 16. On costs, the general principle is that, costs follow the event. No proper basis has been demonstrated to warrant a departure from the general principle. In the circumstances, the applicant shall bear costs of the application. 17. In the end, having evaluated the application dated 30/10/2025, the response to the application, and the parties’ submissions, the application is rejected and dismissed for lack of merit. The applicant, Stephen Nturibi Etirikia, shall bear costs of the application. DATED, SIGNED AND DELIVERED AT MERU THIS 8TH DAY OF JUNE, 2026. B M EBOSO [MR] ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3736/eng@2026-06-08 3

page 3 of 3