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ELCPartially AllowedNot stated in the judgment (ELC matter, Naivasha)· [2025] KEELC 1036 (KLR)

Philip v Parkire (Environment and Land Appeal 1 of 2024) (Environment and Land) [2025] KEELC 1036 (KLR)

Environment and Land Court
6 March 2025
3,401 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Naivahoma stayed execution of its own judgment, but only if the losing landowner deposits Kshs.500,000 in court within 30 days.

What this practically means

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Executive summary

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Following this court's judgment of 3rd October 2024, in which the District Land Registrar, Naivasha was directed to cancel the Applicant's name from the register of LR No. Naivasha/Moi Ndabi/407, the Applicant filed a Notice of Motion dated 4th October 2024 under Order 42 rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking stay of execution of that judgment pending an intended appeal to the Court of Appeal. She argued she stood to suffer substantial loss, having crops and employees on the land, that the land would revert to the Department of Settlement for re-allocation to third parties, defeating the appeal; she relied on Maasai Mara University Council v Walingo on balance of convenience. The Respondent opposed, contending the title had been fraudulently obtained, that the court had become functus officio, that the Applicant's fears were speculative, and that granting stay would perpetuate an illegality; he relied on Machira v East African Standard and Jasbir Singh Rai on costs. The court framed two issues and applied the three Order 42 rule 6(2) conditions: it found substantial loss established given the Applicant's possession and the absence of a successful litigant (the land reverting to government), found no undue delay (application filed one day after judgment), and noted the Applicant had not volunteered security although the decree was not monetary. Invoking the overriding objective and the principle of opting for the lower risk of injustice, the court conditionally allowed the application: stay of execution pending appeal, subject to a deposit of Kshs.500,000/- within 30 days, timelines for supply of proceedings and filing of the record of appeal, with the stay lapsing on default. There shall be no costs. Judgment delivered at Naivasha on 6th March 2025 by M.C. Oundo, Environment & Land Judge.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss warranting stay of execution

Holding

The Applicant discharged the first condition: she was in possession with crops and employees, and since neither party was held to be the lawful proprietor, no successful litigant would be prejudiced by a stay

Reasoning

The court found that the impugned judgment made neither party beneficiary since neither was the legally registered proprietor; the land reverted to government pending re-allocation. With the Applicant in possession, and applying the principle of opting for the lower risk of injustice, the court held substantial loss may result unless stay was granted.

p. 6
02

Whether the application was brought without undue delay

Holding

The application was filed one day after the judgment and therefore without undue delay

Reasoning

The judgment was delivered on 3rd October 2024 and the Notice of Motion was filed on 4th October 2024. The court found no dispute on this limb and held the second condition satisfied without further discussion.

p. 6
03

Whether the absence of security defeated the application

Holding

Although the Applicant had not volunteered security, the court, invoking Section 3A and finding no prejudice to the Respondent, granted a conditional stay with a security deposit of Kshs.500,000/-

Reasoning

The court noted Order 42 rule 6(2)(b) stipulates security in mandatory terms and the Applicant had not pledged any, nor had the Respondent insisted on one; the decree was not monetary. Rather than refuse the stay outright, the court crafted a conditional stay requiring a deposit, failing which the stay lapses.

p. 6
04

Whether the court, having delivered judgment, was functus officio and could not stay its own orders

Holding

The functus officio objection was rejected in effect; the court proceeded to grant a stay of its own judgment under Order 42 rule 6

Reasoning

The Respondent argued that once judgment was delivered and the title ordered cancelled, the court became functus officio and could not stay its own orders without sitting on appeal over itself. The court did not accept this: it expressly considered the application on its merits and granted a conditional stay under Order 42 rule 6 and Section 3A of the Civil Procedure Act.

p. 4

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so the appeal is not rendered nugatory
  • In exercising its discretion the court should opt for the lower rather than the higher risk of injustice
  • Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
  • Security under Order 42 rule 6 is meant to guarantee due performance of the decree, not to punish the judgment debtor

Court orders

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  1. 1.The Application dated 4th October, 2024 is allowed and there shall be stay of execution of the judgment delivered on 3rd October, 2024 pending the hearing and determination of the Applicant's Appeal
  2. 2.The Applicant shall within 30 days from the date of the ruling deposit Kshs.500,000/= in Court; in default, the stay shall automatically lapse
  3. 3.If the Applicant has not been supplied with the proceedings required to prepare the record of Appeal, her Counsel shall liaise with the Deputy Registrar to ensure they are supplied within fifteen (15) days of the order
  4. 4.The Applicant shall within forty-five (45) days compile, file and serve upon the Respondent a complete record of Appeal
  5. 5.If the Applicant does not file the Appeal within the time stipulated, the window granted to file the Appeal shall automatically lapse
  6. 6.There shall be no costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6 (including rule 6(2)(a) and (b))
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A(2) and 1B

Cases cited (6)

  • Maasai Mara University Council & another v Walingo & 3 others
    (Civil Application E031 of 2024) [2024] KECA 336 (KLR) (2 April 2024) (Ruling)
  • Machira t/a Machira & Co. Advoactes v East African Standard
    [2002] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Consolidated Marine. vs. Nampijja & Another
    Civil App.No.93 of 1989 (Nairobi)
  • Mukuma v Abuoga
    (1988) KLR 645
  • Arun C. Sharma vs. Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others
    [2014] eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction)

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, "Philip v Parkire (Environment and Land Appeal 1 of 2024)  (Environment and Land) [2025] KEELC 1036 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC matter, Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1036/eng@2025-03-06

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