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ELCAllowedNot stated in judgment· [2025] KEELC 3110 (KLR)

Jatropower Kenya Limited v Tanui (Enviromental and Land Originating Summons E010 of 2023) [2025] KEELC 3110 (KLR)

Environment and Land Court
4 April 2025
AOANTONY O. OMBWAYO
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court halted land transfer proceedings pending appeal, but only after the buyer paid Kshs 4.5 million as security.

What this practically means

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Executive summary

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The applicant, David K Tanui, moved the Environment and Land Court at Nakuru by a notice of motion dated 4th February 2025 seeking a temporary stay of execution of the judgment, decree and orders of the court delivered on 30th January 2025, pending an intended appeal to the Court of Appeal. He argued the appeal raised triable issues with high chances of success, and that execution would dispossess him of a title deed and part of the purchase consideration, rendering the appeal nugatory. The respondent opposed, contending that no sufficient grounds were shown, that an appeal does not operate as an automatic stay, that execution is a lawful process not amounting to substantial loss, and that the applicant had admitted non-payment of the balance of the purchase price, the title having been found null and void. Ombewayo J applied the three prerequisites under Order 42 Rule 6 of the Civil Procedure Rules, finding the application timely and an appeal on file. Although the court initially recited that the applicant had not demonstrated substantial loss, it concluded he had shown substantial loss as the cornerstone for stay, noting he had paid only Kshs500,000 of the Kshs5,000,000 consideration while the land stood registered in his name. The court restrained the Land Registrar Nakuru from dealing with LEMBUS/KIPTUIM/312 pending the appeal, directed the applicant to deposit Kshs4,500,000 in a joint interest-earning account in the names of both advocates, and awarded costs of the application in the appeal.

Key legal issues

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Whether the conditions for stay of execution pending appeal under Order 42 Rule 6 were satisfied

Holding

The application was filed timeously, substantial loss was demonstrated since the applicant stood to lose the registered property, and security was imposed by way of a deposit

Reasoning

The court applied the three prerequisites in Order 42 Rule 6: the application was brought timeously and an appeal was on file. On substantial loss, the court noted the applicant had paid only Kshs500,000 of the Kshs5,000,000 consideration, yet the land stood registered in his name, and found he would suffer substantial loss if the decree were executed. It balanced the applicant's appeal rights against the decree holder's rights and granted a limited restraining order with security.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
  • Stay of execution should only be granted where sufficient cause is shown under the three prerequisites of Order 42 Rule 6

Court orders

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  1. 1.The Land Registrar Nakuru be restrained from dealing in any manner with the property registration number LEMBUS/KIPTUIM/312 pending the hearing and determination of the appeal
  2. 2.The applicant to deposit Kshs 4,500,000 in a joint interest earning account to be opened in the names of the two advocates for the parties
  3. 3.Costs of the application in the appeal
Jurisdiction invoked
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, "Jatropower Kenya Limited v Tanui (Enviromental and Land Originating Summons E010 of 2023) [2025] KEELC 3110 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3110/eng@2025-04-04

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