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ELCPartially Allowed· [2025] KEELC 1404 (KLR)

Mbobu v Kenya Power and Lighting Company Limited (Environment and Land Appeal E038 of 2024) [2025] KEELC 1404 (KLR)

Environment and Land Court
20 March 2025
2,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court paused enforcement of a Kshs. 421,400 electricity bill award pending appeal, but only after the appellant deposited that sum 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, J) delivered virtually on 20th March 2025 on a Notice of Motion dated 28th August 2024. The Applicant, Mr. Mbobu, sought a stay of execution of the determination of the Energy and Petroleum Tribunal dated 29th February 2024, by which he was ordered to pay an accumulated electricity bill of Kshs. 421,400 in 36 monthly instalments of Kshs. 11,706, with awards for a broken pot and general damages upheld and compensation for 47 cut trees. Having filed a Memorandum of Appeal on 21st March 2024, he moved the court after receiving a fresh bill of Kshs. 432,387 on 15th August 2024. The Respondent opposed, arguing prematurity, bad faith, unclean hands, absence of substantial loss and undue delay, and offered to accept conditions including a deposit of the disputed sum. The court framed a single issue: whether to grant the stay pending appeal. It held that an appeal does not operate as an automatic stay, that the appellate court has original jurisdiction under Order 42 Rule 6 to entertain the stay application directly, that the delay was not unreasonable since certified proceedings had not been supplied and the Respondent had not obtained a decree, and that substantial loss was shown because the payable amount remained to be determined on appeal. The court allowed the application on conditions: a conditional stay of execution of the Tribunal's determination pending the appeal, upon deposit of Kshs. 421,400 in court within 30 days, with costs of the application in the cause.

Key legal issues

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01

Whether the application was filed after unreasonable delay

Holding

The delay was not unreasonable; the Applicant had requested certified proceedings which were never issued, and the application followed the Respondent's bill of Kshs. 432,387 dated 15th August 2024, with no prejudice pleaded by the Respondent.

Reasoning

The Applicant wrote on 21st March 2024 for certified copies of the judgment and proceedings, which had not been supplied. The application was prompted by the electricity bill of Kshs. 432,387 received on 15th August 2024 for settlement by 29th August 2024. The Respondent admitted it had neither obtained a decree nor taxed costs, and pleaded no prejudice from the delay.

p. 5
02

Whether the Applicant demonstrated substantial loss

Holding

Substantial loss was established because if the appeal succeeds the Applicant would have paid a far larger sum than the court may ultimately find payable; the Tribunal's order required payment of Kshs. 421,400 in instalments.

Reasoning

Applying Order 42 Rule 6(2) and the authorities on substantial loss, the court reasoned that since the payable amount would be determined by the appellate court, execution before the appeal could force the Applicant to pay sums the court might find were not due, thereby rendering the appeal nugatory if he complied.

p. 6
03

Security for the due performance of the decree

Holding

Stay was granted on condition that the Applicant deposits the decretal sum of Kshs. 421,400 in court within 30 days, satisfying the security requirement of Order 42 Rule 6(2)(b).

Reasoning

The court balanced the Applicant's apprehension of execution against the Respondent's entitlement to the fruits of its litigation, and secured the Respondent's position by conditioning the stay on the deposit of the disputed sum in court pending the appeal.

p. 6

Legal principles established

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  • Filing an appeal does not automatically stay execution of the decision appealed from; stay is a discretionary remedy to be exercised judiciously.
  • Once an appeal has been filed before the appellate court, that court has original jurisdiction to hear an application for stay of execution regardless of whether a similar application was made before the court appealed from.
  • A party may apply directly to the appellate court for stay of execution.

Court orders

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  1. 1.There be a conditional stay of execution of the determination of the Energy and Petroleum Tribunal dated 29th February 2024 pending the hearing and determination of this appeal
  2. 2.The stay of execution is granted on condition that the Appellant deposits in court Kshs. 421,400 within 30 days of the Ruling
  3. 3.The costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 10
  • Environment and Land Court ActSections 13 and 19
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)
  • Civil Procedure Rules 2010Order 42

Cases cited (13)

  • Giella vs Cassman Brown
  • Global Tours & Travel Limited Nairobi in Winding up Cause No. 43 of 2000
  • Antoine Ndiaye vs African Virtual University
    [2015] KEHC 6783 (KLR)
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] KEHC 1094 (KLR)
  • Silverstein N. Chesoni
    [2002] 1 KLR 867
  • Mukuma vs Abuoga
  • Gianfranco Manenthi & Another vs Africa Merchant Assurance Company Ltd
    [2019] KEHC 7586 (KLR)
  • Federal Commission of Taxation v Myer Emporium Ltd
    1986 160 CLR 220
  • Kenya Shell Ltd v Benjamin Keruga Kibiru and others
    1982-85 1 KAR 1018
  • Pan African Insurance Co. Ltd vs International Air Transport Association
    High Court No. 86 of 2006
  • Equity Bank Limited vs West Link Mbo Limited
    Civil Application 78 of 2011
  • Kiu & Another vs Khaemba & 3 Others
    (Civil Appeal (Application) E270 of 2021) (2021) KECA 318 (KLR)
  • Gulf Timber & Hardware Supplies Limited vs Ngaruiya & 5 Others
    (Civil Appeal E203 of 2021) [2022] KECA 87(KLR)
On appeal from
Energy and Petroleum Tribunal
Jurisdiction invoked
Article 159(2) of the Constitution of Kenya; Sections 13 and 19 of the Environment and Land Court Act; Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules

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, "Mbobu v Kenya Power and Lighting Company Limited (Environment and Land Appeal E038 of 2024) [2025] KEELC 1404 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1404/eng@2025-03-20

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