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ELCPartially AllowedNot stated in the judgment (ELC suit at Nairobi; Ruling on Motion dated 27th August, 2024)· [2025] KEELC 1215 (KLR)

Waweru v Njuguna & 4 others (Environment & Land Case 394 of 2017) [2025] KEELC 1215 (KLR)

Environment and Land Court
13 March 2025
4,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court paused execution of a land judgment pending appeal, but only after the losing party deposited their title deeds in court.

What this practically means

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Executive summary

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This is a Ruling of the Environment and Land Court at Nairobi (O. A. Angote, Judge) delivered on 13th March 2025 on the 1st and 2nd Defendants' Motion dated 27th August 2024, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, seeking a stay of execution of the judgment of 31st July 2024 pending an intended appeal to the Court of Appeal. The judgment had allowed the Plaintiff's suit, cancelling the titles to LR No Dagoretti/Riruta/6629 and 6630 and directing the Land Registrar to amalgamate and sub-divide the parcels to create a 0.25 acre portion to be transferred to the Plaintiff. The Defendants contended they had an arguable appeal and offered reasonable security; the Plaintiff opposed, seeking instead a deposit of Kshs 14,800,000 (50% of the value of the land), deposit of the original title deeds, and an irrevocable undertaking against development. Framing the sole issue as whether the Defendants had discharged the Order 42 Rule 6(2) conditions, the court declined to assess the arguability of the appeal, holding that the rule does not require it and it would be improper for a court to assess its own decision. It found no unreasonable delay (the Motion was filed two days before the lapse of a 30-day temporary stay), found substantial loss because transfer would vest the Plaintiff with statutory powers of disposal placing the property outside the purview of the appeal, and held that deposit of the title deeds plus an inhibition on the titles sufficed as security. The court granted a conditional stay, ordered registration of an inhibition, directed deposit of the title deeds within 15 days as a condition precedent, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

There was no unreasonable delay; the Motion filed on 27th August 2024 came two days before the lapse of the 30-day temporary stay granted with the judgment of 31st July 2024.

Reasoning

The court applied Order 42 Rule 6(2) and authorities on what constitutes unreasonable delay, including Jaber Mohsen Ali v Priscillah Boit and Utalii Transport v NIC Bank. Since the Motion was filed within the period of the temporary stay and no allegation of unreasonable delay was made by the Respondent, the condition was satisfied.

p. 5
02

Whether substantial loss would result if stay is not granted

Holding

Substantial loss was established because execution of the judgment would extinguish the existing titles and vest a new parcel in the Plaintiff, who could then dispose of it, rendering the appeal nugatory.

Reasoning

The judgment mandated cancellation of the titles to Dagoretti/Riruta/6629 and 6630, amalgamation and sub-division to create a 0.25 acre parcel to be transferred to the Plaintiff. Upon registration, the Plaintiff would acquire the statutory powers under Sections 24 and 25 of the Land Registration Act, including the right to sell or charge the land, which would take the subject matter outside the reach of the appeal.

p. 7
03

What security for due performance of the decree should be given

Holding

Deposit of the title deeds in court and registration of an inhibition against the titles would suffice; the Plaintiff's demand for Kshs 14,800,000 was not adopted.

Reasoning

Relying on Arun C Sharma v Ashana Raikundalia and Focin Motorcycle v Ann Wambui Wangui, the court held that the purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor, and that the form of security is discretionary. Considering that the Plaintiff is in occupation of the suit property, deposit of the title deeds plus an inhibition adequately protects the decree.

p. 8
04

Whether the court should assess the arguability of the intended appeal

Holding

No; Order 42 Rule 6 does not require assessment of arguability, and it would be improper for the court to evaluate the arguability of an appeal from its own decision.

Reasoning

The Defendants argued that their appeal was arguable with high chances of success. The court held that its jurisdiction derives from Order 42 Rule 6, which does not contemplate arguability as a condition, and disregarded submissions on that head as procedurally improper and logically untenable.

p. 4

Legal principles established

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  • The jurisdiction to grant stay of execution pending appeal under Order 42 Rule 6 does not require the court to assess the arguability of the intended appeal.
  • Substantial loss may arise where execution of a judgment requiring cancellation and transfer of title would place the suit property beyond the purview of the appeal.
  • Security for due performance of the decree need not be framed in rigid or absolute terms; the court has discretion to determine the appropriate security.

Court orders

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  1. 1.A stay of execution of the Judgment and Orders of 31st July, 2024 be and is hereby granted pending the hearing and determination of the intended appeal to the Court of Appeal.
  2. 2.An order does hereby issue that an inhibition be registered against the title to the suit property Dagoretti/Riruta/6629 and Dagoretti/Riruta/6630 prohibiting any dealings with the title pending the hearing and determination of the intended appeal.
  3. 3.The Defendants shall deposit in court as a condition precedent for the grant of stay of execution of the Judgment pending appeal the title deeds for parcel numbers Dagoretti/Riruta/6629 and Dagoretti/Riruta/6630 within 15 days from the date of this Ruling.
  4. 4.Each party to bear his own costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2); Order 51 Rule 1
  • Environment and Land Court ActSection 3
  • Land Registration ActSections 24 and 25

Cases cited (13)

  • Vishram Ravji Halai v. Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Antoine Ndiaye v. African Virtual University
    [2015] eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&LC 919 of 2012
  • Utalii Transport Company Limited & 3 Others v. NIC Bank Limited & Anor
    [2014] eKLR
  • Rhoda Mukuma v John Abuoga
    [1988] eKLR
  • Century Oil Trading Company Ltd v Kenya Shell Limited (as cited in Muri Mwaniki & Wamiti Advocates v Wings Engineering Services Limited)
    [2020] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Machira T/A Machira & Co Advocates v East African Standard
    [2002] eKLR
  • Arun C Sharma v. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others
    [2014] eKLR
  • Focin Motorcycle C. Ltd v Ann Wambui Wangui
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 42 Rule 6 and 51 Rule 1 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, "Waweru v Njuguna & 4 others (Environment & Land Case 394 of 2017) [2025] KEELC 1215 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC suit at Nairobi; Ruling on Motion dated 27th August, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1215/eng@2025-03-13

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