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b) The Land Registrar, Nandi County be directed not to register any transfer, subdivision, charge, lease transmission, discharge of caution, restriction or any other dealing affecting Nandi/Ndalat/269 land pending the parcel number hearing and determination of the intended appeal. c) Costs of this application be in the intended appeal. 2. The basis of the application is the applicant’ s supporting affidavit of eighteen paragraphs sworn on even date and the accompanying copies of Notice of Appeal, receipt of paying of the proceedings and draft memorandum of appeal marked as ‘PKC-1’, ‘PKC-2’ and ‘PKC-3’ respectively as well as the grounds, inter alia; a) The Applicant is dissatisfied with the Judgement delivered on 9th June 2026 and has lodged a Notice of Appeal against the whole thereof. b) The intended appeal is arguable and raises substantial questions in law and fact regarding adverse possession, acquiescence trust, long occupation and possession of the suit property. 2 KAPSABET ELCLC NO. E010 OF 2023-RULING

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c) The Respondent has already sought extraction of a decree arising from the Judgement, demonstrating an intention to act upon the judgment and creating a real apprehension that dealings affecting the suit property may be taken imminently. d) The court had previously pursuant to an application for injunction issued an order for status quo on the 21/9/2023 maintaining the status quo to the effect that no party should utilize the parcel until the completion of suit. e) There is need to maintain the order of status quo as earlier given to protect the substratum of the intended appeal. f) There exists a real risk that third party interests may be created over the suit property thereby complicating or defeating the intended appeal. 3. The respondent through Z. K Yego Law Offices opposed the application by his 17-paragraphed affidavit sworn on 8th July 2026 and sought that the same be dismissed with costs. He averred in part, that by this Honourable Court’s judgment delivered on 9th June 2026, the applicant’s suit 3 KAPSABET ELCLC NO. E010 OF 2023-RULING

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by way of an originating summons dated 16 th August 2023 was dismissed with costs to the respondent. That the applicant has not satisfied the prerequisite conditions under Order 42 Rule 6 (2) of the Civil Procedure Rules 2010 and the principles of granting a temporary injunction to warrant the court to exercise its discretion in favour of the applicant in respect of the orders sought in the application. That stay of execution is a discretionary remedy. 4. Also, the respondent averred that the applicant has not put forth any ground to show the strength of the intended appeal. That therefore, the court is unable to verify that the applicant has an arguable appeal as the memorandum of appeal is not attached to the application. That the application is an after-thought with no basis and a desperate attempt to curtail the ends of justice. 5. By the further affidavit of ten paragraphs sworn on 16 th July 2026, the applicant stated in part, that the application seeks preservation of the suit property and maintenance of the prevailing status quo pending the hearing and determination of the intended appeal so that the appeal is 4 KAPSABET ELCLC NO. E010 OF 2023-RULING

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not rendered nugatory. That there remains a real apprehension that unless restrained, the respondent may, inter alia, transfer and sub divide the land parcel number Nandi/Ndalat/269 thereby creating third party interests to his prejudice. 6. At paragraph 9 of the further affidavit, the applicant averred thus; ‘THAT I have prosecuted my appellate rights without delay by filing a Notice of Appeal, requesting certified proceedings and judgment, and promptly filing the present application.’ 7. Pursuant to this Honourable Court’s directions given on 13th July 2026, the application was heard by written submissions. 8. By the submissions dated 16 th July 2026, learned counsel for the applicant contended that the applicant is not seeking a stay of execution of the judgment but preservation orders pending the determination of the intended appeal. That this Honourable Court has the jurisdiction to grant preservation orders under section 13 (7) of the Environment and Land Court 2015 (2011) as 5 KAPSABET ELCLC NO. E010 OF 2023-RULING

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well as sections 1A, 1B and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya. That the applicant has demonstrated that Land parcel number NANDI/NDALAT/269 constitutes the substratum of the appeal, the suit property be preserved not to render the intended appeal nugatory and that the respondent will not suffer any prejudice if the status quo is maintained pending the outcome of the prospective appeal, among others. That the application be allowed with costs of the application abiding the outcome of the intended appeal. 9. Additionally, counsel cited the case of Moi High School, Kabarak & another vs Bell & 2 others (2013) eKLR that affirmed that preservation orders are intended to preserve the subject matter of litigation pending appeal to protect the integrity of the appellate process. That the court noted in RWW vs EKW {2019} KEHC 6523 (KLR) that the purpose of the interim relief pending appeal is to preserve the subject matter in dispute so that the rights of the parties are safeguarded while balancing the competing interests of both parties. 6 KAPSABET ELCLC NO. E010 OF 2023-RULING

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10. By the submissions dated 22ND July 2026, learned counsel for the respondent made reference to the application and the replying affidavit as well as framed three issues for determination inclusive of whether the applicant has satisfied the threshold for grant of an injunction or status quo orders after the dismissal of the suit. It was submitted that this court is functus official except to the limited extent permitted by law such as correction of errors in the judgment. That since this court rendered judgment on 9th June 2026 and the plaintiff/applicant filed a notice of appeal dated 10th July 2026 on 11th July 2026, it is devoid of jurisdiction in respect of the application going by Rule 5 (2) (b) of the Court of Appeal Rules. That in the absence of a positive order in the judgment, the exercise of the court’s discretion is fettered by the conditions under Order 42 Rule 6 (2) of the Civil Procedure Rules 2010. That the court cannot create vague status quo as the suit was dismissed and the respondent remains the registered owner of the subject matter as no legal interest has been declared over it. That the matter is concluded and cannot 7 KAPSABET ELCLC NO. E010 OF 2023-RULING

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be reopened by this court. That the application is not merited and the same be dismissed with costs 11. To fortify the submissions, counsel cited the case of Barthlemew Mwanyungu & 3 others vs Florence Dean Karimi {2019} KEELC 4687 (KLR) that under Order 42 Rule 6 (6) of the Civil Procedure Rules 2020, the court has the discretionary power to grant injunction only when exercising appellate jurisdiction. Also, counsel cited the case of Vishram Ravji Halal vs Thornton & Turpin (1990) KLR 365 on rendering appeal nugatory and arguable grounds and Halsbury’s Laws of England 3 rd Edition, Volume 21 paragraph 739 at page 352 and Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014) eKLR regarding principles of injunction. 12. In the foregone, this Honourable court is duty-bound to determine whether the restraint orders sought in the application are merited. 13. It must be borne in mind that the instant suit generated by an originating summons dated 16 th August 2023, was dismissed with orders that each party to bear own costs by the judgment delivered on 9 th June 2026. 8 KAPSABET ELCLC NO. E010 OF 2023-RULING

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Indeed, the decision contains no positive orders for enforcement. 14. In cases of negative orders, it is established law that a stay of execution cannot be granted as there is nothing positive to stay or enforce; see Western College of Arts and Applied Sciences (WECO) vs Oronga {1976} KECA 15 (KLR). 15. Besides, this Honourable Court has the mandate to grant interim preservation orders under section 13 (7) of the Environment and Land Court Act 2015 (2011). So, are conservatory orders sought in the application to preserve the subject matter pending appeal, deserved in the instant application? 16. By the Notice of appeal dated 10th July 2026 and filed on 11th July 2026, an appeal to the Court of Appeal is deemed to have been filed under Order 42 Rule 6 (4) of the Procedure Rules 2010…..of the Civil Procedure Rules 2010. 17. During the pendency of the suit on 21 st Sept 2023, this court issued status quo orders on the terms, inter alia, 9 KAPSABET ELCLC NO. E010 OF 2023-RULING

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‘The plaintiff/applicant to remain in possession of the suit property………’ 18. It is trite law that conservatory orders can be deployed post judgment to ensure that the substratum of the intended appeal would be fundamentally altered, rendering the appellate process a futile academic exercise.; see Katiba Institute vs Attorney General & 9 others (2018) KLR. 19. Notably, the special and inherent jurisdiction of this court are provided for under sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and section 3 of the Environment and Land Court Act 2015 (2011). 20. This Honourable Court subscribes to the case of Board of Governors, Moi High School, Kabarak & another vs Bell & 2 others {2013} KESC 12 (KLR) where the Supreme Court of Kenya held that the Court; ‘………….is equally empowered not only to exercise its inherent jurisdiction, but also to make any essential or ancillary orders such as will enable it to sustain……..such 10 KAPSABET ELCLC NO. E010 OF 2023-RULING

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exercise of ……..that of safeguarding the character of the appeal pending the resolution of the contested issues.’ 21. In the instant circumstances, the property in dispute may be at risk of being permanently alienated or disposed of before the prospective appeal is heard and determined; see Erinford Properties Ltd vs Cheshire County Council (1974) 2 All ER 448 and Shade Manufacturers and Hotel Limited vs Serah Mweru Mutuu & 3 others {2018} KECA 205 (KLR). 22. Thus, it is the finding of this court that the application dated 15th June 2026 is meritorious and the same is hereby allowed as follows; a) Pending the hearing and determination of the intended appeal, the Respondent, his servants, agents and/or anyone acting under his authority be restrained from selling, transferring, charging, leasing, subdividing, alienating, wasting, evicting the Applicant from, or otherwise interfering with land parcel number Nandi/Ndalat/269. b) The Land Registrar, Nandi County shall not register any 11 transfer, subdivision, charge, lease KAPSABET ELCLC NO. E010 OF 2023-RULING

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transmission, discharge of caution, restriction or any other dealing affecting land parcel number Nandi/Ndalat/269 pending the hearing and determination of the intended appeal. c) Costs of the application to abide the outcome of the intended appeal. 23. It is so ordered. DATED and DELIVERED at KAPSABET this 29TH day of SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Mr. J. K. Songok learned counsel for the learned counsel for the applicant/plaintiff. 2. Ms Chelimo Bungei respondent/defendant. 3. Emma, court assistant. 12 KAPSABET ELCLC NO. E010 OF 2023-RULING

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