REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET ELCLA NO. E017 OF 2026 JOEL MAKICHE……………………………………APPLICANT/APPELLANT VERSUS EDWARD KIMISIK BIRGEN………………………………….RESPONDENT RULING 1. The applicant/appellant, Joel Makiche through RonohLaw & Associates Advocates generated an application by way of a Notice of Motion dated 28th July 2026 seeking the following principal orders; a) That pending the lodging, hearing and determination of the applicant’s intended appeal, the execution of the decision of Hon. Bartoo B, PM delivered on 17 th July KAPSABET ELCLA NO. E017 OF 2026 RULING 1
page 1 of 5
2026 in Kabiyet Principal Magistrate’s Court MCELC E003 OF 2026, be stayed. b) That in the interests of just, efficient and fair administration of justice, this appeal be consolidated with Kapsabet ELCA E016 OF 2026 as they involve the same parcel of land which is Nandi/Kaiboi/126 and the same parties. c) Any further orders as this Honourable Court may deem fit and just to grant. 2. The application is supported by the applicant’s affidavit alongside the grounds on the face of it. In a nutshell, the applicant stated that by the trial court’s judgment delivered on 17th July 2026, the applicant was ordered to vacate the suit property, LR No. Nandi/Kaiboi/126 within ninety (90) days from that date. That the applicant was extremely dissatisfied with the determination which essentially has the effect of dispossessing him millions of shillings worth of developments and a place he has called home for over 26 years. That therefore, he has lodged the appeal by way of the memorandum of appeal herein. KAPSABET ELCLA NO. E017 OF 2026 RULING 2
page 2 of 5
3. The respondent duly served as per the affidavit of service sworn on 20th August 2026 by an authorized process server, Stephen Bwire, failed to respond to the application. 4. Mr. Cheruiyot Bethwel instructed by Jeruto learned counsel for the applicant referred to the said affidavit of service in relation to the application which has not been responded to. He therefore, urged the court to allow the application. 5. In that regard, is the application meritorious? 6. As already noted, the applicant has demonstrated that the respondent duly served, neglected to respond to the application; see Pradeep Harish Hindocha vs Catherine Matei Chena {2024] KECA 819 (KLR). 7. In view of the stay sought in the application, this court subscribes to the decision in the case of Butt vs Rent Restriction Tribunal (1979) eKLR where the Court of Appeal was emphatic thus; ‘........and the Appellant (the Applicant herein) has an undoubted right of appeal.....’ 8. Further, I bear in mind the core essence of consolidation as a tool for efficient dispute resolution without prejudice to any KAPSABET ELCLA NO. E017 OF 2026 RULING 3
page 3 of 5
party; see Law Society of Kenya vs Centre for Human Rights and Democracy & 12 others {2014} KESC 29 (KLR). 9. Moreover, the prayer for consolidation of the present appeal with Kapsabet ELCLA No. E016 of 2026 set for mention on 10th November 2026 hence, the latter be the head file, is in the spirit of Article 159 (2) (b) of the Constitution of Kenya 2010 that; justice shall not be delayed. 10. Additionally, this court is guided by the decision in Martin Kabaya vs David Mungania Kiambi {2015} KECA 526 (KLR) where the Court of Appeal noted; ‘The need for judicial proceeding to be concluded in a timely fashion……..’. 11. Accordingly, the application dated 28th July 2026 is steadfast, cogent and merited. The same is hereby allowed in terms prayers 4 and 5 therein as set out in paragraph 1 (a) and (b) hereinabove with no orders as to costs. 12. It is so ordered. KAPSABET ELCLA NO. E017 OF 2026 RULING 4
page 4 of 5
Dated and Delivered Virtually this 25th day of August 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Mr. Cheruiyot Bethwel instructed by Jeruto learned counsel for the applicant 2. Kariuki, court assistant KAPSABET ELCLA NO. E017 OF 2026 RULING 5
page 5 of 5