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ELCDismissedKakamega ELC No. E070 of 2018 (as consolidated with ELCC No. 351 of 2022)· [2025] KEELC 554 (KLR)

Francis Masinde Mumia v Joseph Koech (Acting as the personal representative of the estate of the late Chepsiror Arap Kogo – deceased) & 3 Others

Environment and Land Court
13 February 2025
1,141 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause enforcement of a land judgment because the appellant filed his appeal notice late and his stay application came far too late.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyamira, delivered by D. O. Ohungo J on 13th February 2025, disposes of a Notice of Motion dated 12th August 2024 by Francis Masinde Mumia (the applicant) seeking stay of execution of the judgment delivered on 30th April 2024 in Kakamega ELC No. E070 of 2018 as consolidated with ELCC No. 351 of 2022, pending an intended appeal to the Court of Appeal. In that judgment the applicant's suit was dismissed, he was ordered to vacate Kakamega/Sango/131 within sixty days failing which eviction would issue, a permanent injunction was issued against him, and costs were awarded to Dinah C. Chepsioror and Seli Kogo. The respondents opposed the stay application, contending among other things that no valid Notice of Appeal was filed and that the application was made after unreasonable delay. The court framed a single issue: whether stay of execution pending appeal should be granted. Applying Order 42 rule 6 of the Civil Procedure Rules, 2010, and the principles in Kenya Shell Limited v Benjamin Karuga Kibiru, the court found no valid Notice of Appeal: the annexed Notice dated 10th May 2024 had no evidence of filing or payment, and a filing on 15th May 2024 would be outside the fourteen-day window under Rule 77(2) of the Court of Appeal Rules. The court further found the application, filed 105 days after judgment and long after the sixty-day vacation window had closed, to be unreasonably delayed. The application was dismissed with costs to the respondents.

Key legal issues

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01

Validity of the Notice of Appeal

Holding

No valid Notice of Appeal was filed; the document annexed had no evidence of actual filing, no court fees receipt, and any filing on 15th May 2024 would be out of time

Reasoning

Judgment was delivered on 30th April 2024, and the Notice of Appeal was due by 14th May 2024 under Order 42 rule 6(4) and Rule 77(2) of the Court of Appeal Rules. The annexed Notice dated 10th May 2024 had no proof of filing or payment; the CTS showed an unpaid upload on 15th May 2024, which would itself be late and require extension of time.

p. 3
02

Unreasonable delay in applying for stay

Holding

The application filed 105 days after judgment, long after the 60-day vacation window, was an unreasonable delay

Reasoning

The applicant was given 60 days to vacate and should have sought stay before that window closed. Filing on 14th August 2024, 105 days after judgment, demonstrated delay and suggested an intent to prolong occupation of the suit property unjustly.

p. 3

Legal principles established

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  • A litigant seeking stay of execution pending appeal must demonstrate a valid Notice of Appeal, substantial loss, and that the application was made without unreasonable delay, and must give security as ordered
  • Stay of execution cannot issue absent a valid appeal within the meaning of Order 42 rule 6 (4)

Court orders

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  1. 1.Notice of Motion dated 12th August 2024 dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6; Order 42 rule 6 (4)
  • Court of Appeal RulesRule 77 (2)

Cases cited (2)

  • Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others
    [2020] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010

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, "Francis Masinde Mumia v Joseph Koech (Acting as the personal representative of the estate of the late Chepsiror Arap Kogo – deceased) & 3 Others", Case Analysis (2025). Kakamega ELC No. E070 of 2018 (as consolidated with ELCC No. 351 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/554/eng@2025-02-13

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