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ELCPartially AllowedBungoma ELC Appeal (arising from Kimilili ELC 26 of 2019) – Application dated 12/08/2024· [2025] KEELC 92 (KLR)

Njeru v Kamau & 5 others (Environment and Land Appeal E035 of 2024) [2025] KEELC 92 (KLR)

Environment and Land Court
23 January 2025
2,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Bungoma court paused the cancellation of a land title, but only because the owner deposited the title deed in court as security while the appeal proceeds.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Bungoma (E.C. Cherono, ELC Judge) determined an application dated 12/08/2024 by Esther Wanjiru Njeru, the appellant, seeking stay of execution of a judgment delivered on 08/07/2024 in Kimilili SPMELC No. 26 of 2010, in which the trial court cancelled the certificate of title for land parcel Kimilili/Kimilili/875/19 registered in the name of the late Micheal Kairu Ngeru and reverted it to Tela Kisaka alias Mukhooli Kisaka. The application, brought under Article 40 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 of the Civil Procedure Rules and Section 26(1) of the Land Registration Act, also sought an order that the 1st, 2nd and 3rd respondents deposit rent in a joint interest-earning account. The 5th and 6th respondents (estates of Simeon Walukhela Musungu and Mukholi Kisala) and the 1st and 2nd respondents opposed, arguing the applicant had not met the stay conditions and that prior interim rent orders had lapsed. The court framed three issues: whether the stay requirements were met, whether a case for rent-deposit orders was made, and costs. Applying Order 42 Rule 6, it found substantial loss (cancellation of title would render the applicant destitute), found the one-month-and-four-day delay not inordinate, and found the sixteen-ground appeal arguable, but noted the applicant was silent on security. It allowed the application conditionally: stay of execution pending appeal, deposit of the certificate of lease in court within fourteen days as security, continued monthly rent deposits by the 1st, 2nd and 3rd respondents into the joint Co-operative Bank account, filing of a record of appeal within 45 days, automatic lapse on default, and costs in the appeal.

Key legal issues

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01

Whether the applicant established substantial loss

Holding

The court accepted that cancellation of the applicant's title would take effect and render her destitute, satisfying the substantial loss requirement

Reasoning

The applicant was the legal representative of the deceased registered proprietor whose title was cancelled and reverted by the trial court's judgment. She argued that the cancellation taking effect would leave her destitute. The court found this sufficient to demonstrate substantial loss, guided by the principle that proof of substantial loss is the most important limb of a stay application.

p. 4
02

Whether the application was made without undue delay

Holding

A delay of one month and four days was found not to be inordinate and therefore excusable

Reasoning

Judgment was delivered on 08/07/2024 and the application filed on 12/08/2024, a delay of one month and four days. Guided by the decision in Jaber Mohsen Ali & Another v Priscillah Boit & Another, the court held this delay was not inordinate and thus excusable.

p. 4
03

Security for the due performance of the decree

Holding

The applicant was silent on security, so the court granted stay on the condition that the certificate of lease be deposited in court

Reasoning

Citing Equity Bank Ltd v Taiga Adams Company Ltd, the court noted that where an order as to security has not been made, the applicant ought to raise it and express willingness to abide by conditions. The applicant's application was silent on security, so the court itself imposed security by ordering deposit of the certificate of lease as a condition for stay.

p. 4
04

Whether the appeal is arguable

Holding

The court found, from a perusal of the sixteen-ground memorandum of appeal, that the appeal is arguable without delving into its merits

Reasoning

The court perused the memorandum of appeal dated 29/07/2024 with sixteen grounds and, mindful that an intended appeal need not necessarily succeed, found the appeal arguable. The right of appeal must be balanced against the judgment creditor's right to enjoy the fruits of the judgment.

p. 4

Legal principles established

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  • The purpose of an application for stay of execution is to preserve the subject matter in dispute so that the appellant's right is safeguarded
  • Stay of execution requires sufficient cause, substantial loss, security, and application without unreasonable delay, plus demonstration that the appeal will be rendered nugatory
  • In deciding a stay application the court must exercise its discretion judiciously and opt for the lower rather than the higher risk of injustice
  • Mere allegation of substantial loss is not enough; it must be proved

Court orders

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  1. 1.Stay of execution of the judgment delivered on 08/07/2024 at Kimilili SPMELC No. 26 of 2019 pending hearing and determination of the appeal
  2. 2.Applicant to deposit the certificate of lease of land parcel no. Kimilili/Kimilili/875/19 in court as security within fourteen (14) days
  3. 3.1st, 2nd and 3rd Respondents to deposit monthly rent in the joint interest earning account number 0110xxxxxxxxxx at the Co-operative Bank under the names of HERMMERTON/IVAN pending hearing and determination of the appeal
  4. 4.Applicant/appellant to compile, file and serve a record of appeal within 45 days and move the court towards finalization of the appeal
  5. 5.In default of the conditions above, the conditional stay of execution shall automatically lapse
  6. 6.Costs shall be in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(6)
  • Land Registration ActSection 26(1)

Cases cited (8)

  • Consolidated Marine – Versus – Namprijad
    An. Civil Appeal No. 93 of 1989
  • Masisi Mwita –VS– Damaris Wanjiku Njeri
    [2016] eKLR, Civil Appeal No. 107 of 2015
  • Vishram Rouji Halal –VS– Thrornton & Turpur
    Civil Appeal No. 15 of [1990] KLR 365
  • Hassan Guyo Wakolo –VS– Straman E.A. Ltd.
    [2013]
  • David Kipkoskei Kimeli Vs Titus Barmasai
    [2019] eKLR
  • Jaber Mohsen Ali & Another…Vs…Priscillah Boit & Another
    ELC No.200 of 2012 (2014) eKLR
  • Equity Bank Ltd Vs Taiga Adams Company Ltd
    [2006] eKLR
  • Mohamed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat
    [2013] eKLR
On appeal from
Kimilili Principal Magistrate's Court (SPMELC)
Kimilili SPMELC No. 26 of 2019
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over the subordinate court), Article 40 of the Constitution, Section 26(1) of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njeru v Kamau & 5 others (Environment and Land Appeal E035 of 2024) [2025] KEELC 92 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (arising from Kimilili ELC 26 of 2019) – Application dated 12/08/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/92/eng@2025-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.