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ELCDismissedELC Case (Murang'a) - post-judgment Notice of Motion dated 18th September 2024 (suit property LOC.Gakoigo/975)· [2025] KEELC 282 (KLR)

Cherere v Wandarwa & another (Environment & Land Case 18 of 2020) [2025] KEELC 282 (KLR)

Environment and Land Court
29 January 2025
3,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The court refused to pause the outcome of a dismissed land ownership case, ruling that a dismissal is a 'negative order' that cannot be stayed, and rejected the claimant's evidence of living on the land.

What this practically means

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Executive summary

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This was a post-judgment Notice of Motion dated 18th September 2024 by Benson Mwangi Cherere, premised on Order 40 Rules 1-4, Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking stay of execution of the Environment and Land Court's judgment of 18th July 2024 and restoration of the status quo pending an intended appeal to the Court of Appeal. The underlying suit had claimed ownership of LOC.Gakoigo/975 through an 18th June 2001 sale agreement and adverse possession; the suit was dismissed, though the Applicant recovered the purchase price with interest from the 1st Respondent. The 2nd Respondent, Stephen Muraya Kamuri, opposed, arguing the application was a delaying tactic, that the Applicant was not in occupation, that no Record of Appeal had been filed within Rule 82(1) timelines, and that the land had been subdivided into 11 parcels. The Court framed two issues: entitlement to the orders sought and costs. Applying the Order 42 Rule 6(2) conditions and authorities including Absalom Dova, RWW v EKW, Nicholas Stephen Okaka and Jason Ngumba Kagu, the Court found an unexplained sixty-day delay, no evidential proof of occupation (no photographs or valuer's report), no security offered, and held that the dismissal judgment was a negative order incapable of stay save as to costs. The application was dismissed entirely with costs to the Respondents under Section 27 of the Civil Procedure Act. Delivered virtually at Murang'a by L. Gacheru J on 29th January 2025.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application failed on all three conditions: unexplained 60-day delay, no proof of substantial loss/actual occupation, and no security offered

Reasoning

The Court measured the application against the Order 42 Rule 6(2) conditions. The application was filed about sixty days after judgment with no explanation for the delay despite a Notice of Appeal filed on 2nd August 2024. The Applicant's claim of occupation was unsupported by photographic or valuation evidence, so any interest was compensable by costs. No security for the Respondents' costs was offered as a sign of good faith.

p. 5
02

Whether the dismissal judgment is capable of being stayed

Holding

A dismissal is a negative order incapable of stay, save for costs

Reasoning

Relying on Ndungu vs Mutua, Co-operative Bank of Kenya Ltd vs BIFU and Raymond M. Omboga vs Augustine Pyan Maranga, the Court held that the judgment dismissing the adverse possession and contract claims was a negative order, so there was nothing to execute except the costs order, and consequently nothing capable of being stayed.

p. 7

Legal principles established

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  • A dismissal order is a negative order incapable of being stayed, save in respect of costs
  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance under Order 42 Rule 6(2)
  • Actual possession must be proved; possession is a matter of fact requiring some sufficient degree of physical occupation

Court orders

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  1. 1.The instant Application dated 18th September 2024 is dismissed entirely
  2. 2.Costs of the application to the Respondents, being the successful parties, pursuant to Section 27 of the Civil Procedure Act

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 to 4
  • Civil Procedure RulesOrder 42 Rule 6(2)(a) and (b)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 27
  • Law of Succession ActSection 45
  • Court of Appeal RulesRule 82(1)

Cases cited (9)

  • Absalom Dova vs Tarbo Transporters
    [2013] eKLR
  • RWW v EKW
    [2019] KEHC 6523 (KLR)
  • Nicholas Stephen Okaka & another Vs Alfred Waga Wesonga
    [2022] eKLR
  • Jason Ngumba Kagu & 2 Others Vs Intra Africa Assurance Co. Limited
    [2014] eKLR
  • Alphonce Agutu Dera v Fanuel Dera Achongo
    [2022] eKLR
  • Awale Transporters Ltd v Kelvin Perminus Kimanzi
    HCCA No 161 of 2019
  • Ndungu vs Mutua
    (Civil Appeal E047 of 2024) [2024] KEHC 6276 (KLR) (6 June 2024) (Ruling)
  • Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Raymond M. Omboga -Vs Augustine Pyan Maranga
    Kisii HCCA No. 15 of 2010
Jurisdiction invoked
Order 40 Rules 1 to 4 as read together with Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure 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, "Cherere v Wandarwa & another (Environment & Land Case 18 of 2020) [2025] KEELC 282 (KLR)", Case Analysis (2025). ELC Case (Murang'a) - post-judgment Notice of Motion dated 18th September 2024 (suit property LOC.Gakoigo/975). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/282/eng@2025-01-29

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