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ELCDismissed(Not stated in judgment)· [2025] KEELC 3032 (KLR)

Lamu Breeze Investment Limited & another v Malakwen & 5 others (Cause 224 of 2014) [2025] KEELC 3032 (KLR)

Environment and Land Court
26 March 2025
EME. K. Makori
2,122 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Malindi dismissed a stay application because the court orders had already been carried out, leaving nothing to stay.

What this practically means

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Executive summary

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The 3rd Defendant filed a Notice of Motion dated 11th December 2024 seeking a stay of execution of orders made by Deputy Registrar Hon. I. Thamara on 9 December 2024, which permitted execution of the decree against property known as CR 18245 (LR No. 10159), and preservation of the subject matter of an intended appeal. The 3rd Defendant contended that the decree of 20 February 2020 related to CR 8245, that no decree existed for CR 18245, and that the Deputy Registrar erred in allowing execution in the absence of a valid decree, invoking this Court's review jurisdiction under Section 12(1) of the Environment and Land Court Act. The Plaintiffs opposed, showing that Justice J.O. Olola's orders of 27th October 2020 amended the decree to reflect CR 18245, that those orders were never set aside, that the Court of Appeal dismissed the 3rd Defendant's appeal on 10 November 2024 with the stay lapsing thereafter, and that the Plaintiffs had already taken possession, rendering the application moot. Makori J framed two issues: whether review was germane and who should bear costs. Though satisfied the Court had jurisdiction to review, the Court found nothing to review, stay or preserve: the Plaintiffs had complied with the orders and a fresh decree incorporating the amendments had been published on 17th February 2025. The application dated 11th December 2024 was dismissed with costs.

Key legal issues

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01

Whether the Court has jurisdiction under Section 12(1) of the Environment and Land Court Act to review the Deputy Registrar's decision

Holding

Yes, the Court is vested with jurisdiction to review a Deputy Registrar's decision on judicial functions, and the application was properly before the Court

Reasoning

Section 12(1) of the Environment and Land Court Act permits any person aggrieved by a decision of the Registrar on judicial functions of the Court to apply for review by a judge in accordance with the Rules. The Applicant rightly invoked this provision, and the application for review of the Deputy Registrar's orders was properly before the Court for determination.

p. 2
02

Whether there was anything left to review, stay or preserve

Holding

No - the Plaintiffs had already complied with and executed the orders; the Deputy Registrar had issued a fresh decree incorporating the amendments, making the application moot

Reasoning

The stay sought presupposed that the Deputy Registrar's orders of 9 December 2024 had not been executed. An affidavit by a director of the 1st Plaintiff confirmed compliance, and on 17th February 2025 the Deputy Registrar published a decree dated 22nd November 2019 incorporating the Judge's amendments. The orders of Justice Olola of 27th October 2020 amending the decree were never set aside and were capable of independent execution. Nothing therefore remained to be stayed or preserved.

p. 3

Legal principles established

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  • An application for stay of execution or preservation is moot where the orders sought to be stayed have already been complied with and executed
  • A judgment is enforced through a decree; without a decree reflecting the true position of the judgment there is no decree capable of execution

Court orders

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  1. 1.The application dated 11th December 2024 is dismissed with costs

Authorities

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Legislation

  • Environment and Land Court ActSection 12(1)
  • Civil Procedure RulesOrder 21, Rule 7
  • Civil Procedure RulesOrder 21, Rule 8
  • Civil Procedure RulesOrder 42, Rule 6

Cases cited (3)

  • Atul Shah v Deputy Registrar, High Court of Kenya at Mombasa & 2 others
    [2018] eKLR
  • Masinde Muliro University of Science and Technology v Alfatech Contractors Limited; Kenya Commercial Bank Limited & another
    [2021] eKLR
  • Fidelity Commercial Bank Ltd v Shah & 3 others
    (Civil Application E038 of 2022) [2023] (KLR)
Jurisdiction invoked
Section 12(1) of the Environment and Land Court Act - review of a decision of the Registrar on judicial functions of the Court

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, "Lamu Breeze Investment Limited & another v Malakwen & 5 others (Cause 224 of 2014) [2025] KEELC 3032 (KLR)", Case Analysis (2025). (Not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3032/eng@2025-03-26

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