Konchella v Kendeya & another (Environment and Land Appeal E007 of 2022) [2023] KEELC 33 (KLR)
The bottom line
#A Kenyan landowner won a stay of execution, keeping possession of his land of 70 years until his appeal against a transfer order is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the conditions in Order 42 Rule 6(2) for stay of execution pending appeal
Yes. The application was filed without undue delay (filed 26th September 2022, judgment having been delivered 25th August 2022), substantial loss was shown since implementation would alter the Applicant's occupation, livelihood and ownership of the suit properties, and the court fashioned non-monetary safeguards in lieu of security in a land dispute.
The court applied Order 42 Rule 6(2) as explained in Samvir Trustee Ltd v Guardian Bank Ltd and Butt v Rent Restriction Tribunal, weighing the Applicant's undoubted right of appeal against the Respondents' right to the fruits of judgment. It found the Applicant had lived on the land for 70 years, an undisputed fact, and that execution would render the appeal nugatory by dispossessing him. As monetary security is impracticable in land disputes, the court instead restrained alienation and new developments.
Whether a temporary injunction should issue against the Respondents pending appeal
Yes. Flowing from the finding on substantial loss, the Respondents were restrained from interfering with the Applicant's quiet occupation and use of the suit properties pending appeal.
The court held that the second issue depended on the outcome of the first. Having found that implementation of the trial court's orders would cause substantial loss and alter the Applicant's livelihood and property rights before the appeal is heard, it was necessary also to preserve the status quo by prohibiting the Respondents from entering, cultivating, fencing or otherwise taking possession of the suit properties pending the appeal.
Legal principles established
#- A stay of execution will be granted where the application is made without unreasonable delay, substantial loss is demonstrated, and security is given; in a land dispute the court may craft non-monetary safeguards to preserve the substratum of the appeal.
- Implementation of a judgment that would alter a party's occupation and ownership of land before the right of appeal is exhausted constitutes substantial loss justifying stay.
Court orders
#- 1.An order of stay of execution granted against execution of the judgment and decree in Kilgoris SPM ELC No. 123 of 2018 dated 25th August 2022, together with all consequential proceedings and/or orders, in particular the limbs relating to permanent injunction restraining the Appellant/Applicant from dealing with L.R. No. Transmara/enanyieny/881 and directing transfer of 10 acres and 2 acres respectively out of L.R. No. Transmara/enanyieny/881 & 882, pending the hearing and determination of the appeal.
- 2.An order of temporary injunction restraining the Respondents, their agents, servants and/or anyone claiming under them, from entering upon, trespassing onto, fencing, cultivating, grazing, interfering with the Appellant's occupation, building on and/or otherwise taking possession of L.R. No. Transmara/enanyieny/881 & 882 or any portion pending the hearing and determination of the appeal.
- 3.Costs to abide the outcome of the substantive appeal.
- On appeal from
- Kilgoris Senior Principal Magistrate's Court (SPM ELC)
- Kilgoris SPM ELC No. 123 of 2018
- Jurisdiction invoked
- Sections 13(7), 19 and 26 of the Environment and Land Court Act, 2011 and Order 42 Rules 6(1), (2) and (6) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muna & 5 others v Boscardin & 3 others (Environment and Land Case 27 of 2020) [2026] KEELC 3522 (KLR)[2026] KEELC 3522 (KLR)10 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Konchella v Kendeya & another (Environment and Land Appeal E007 of 2022) [2023] KEELC 33 (KLR)", Case Analysis (2023). Notice of Motion dated 21st September 2022 in Appeal against Kilgoris SPM ELC No. 123 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/33/eng@2023-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.