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ELCPartially AllowedELC Case No. 37 of 2021 (OS)· [2025] KEELC 3218 (KLR)

Kamau v Nazamdini; Kiburi, Mwangi Ben & Company Advocates (Interested Party) (Enviromental and Land Originating Summons E037 of 2021) [2025] KEELC 3218 (KLR)

Environment and Land Court
8 April 2025
MGM.N. Gicheru
809 words in judgment
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The bottom line

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A Court of Appeal stay of execution blocks every form of execution in Kenya, including recovering advocates' costs, so any enforcement after it is unlawful.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, J) determines a notice of motion dated 29-4-2024 by the Defendant, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of warrants of arrest issued in respect of a taxed advocates' bill of costs, pending a chambers appeal (ELC Chambers Appeal filed in this case No. 37 of 2021(OS)) concerning substitution of a deceased party. The interested party opposed, arguing the suit was concluded, the court was functus officio, the Court of Appeal had already denied stay, and that no substantive orders could issue following the Plaintifi's death after judgment. In a further affidavit, the Defendant annexed a Court of Appeal at Nyeri consent order dated 18-3-2024 in Civil Application No. E101 of 2023 staying execution of the judgment and decree of 25th May 2023. Counsel framed four issues: joinder of an interested party in a concluded suit; functus officio; execution of advocates' costs pending appeal; and execution where a party has died without substitution. The court declined to make findings on any of these issues, holding it superfluous because the Court of Appeal had already granted the prayers sought. The stay was held to cover all forms of execution, including advocates' costs, rendering any purported execution after the consent order unlawful and an abuse of process. The motion was allowed in terms of prayer 2 purely as a restatement of the Court of Appeal order, with costs to the Defendant.

Key legal issues

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Whether execution could proceed notwithstanding the pending appeal

Holding

The Court of Appeal consent order of 18-3-2024 staying execution of the judgment and decree covers all forms of execution including advocates' costs; the trial court's order merely restates it

Reasoning

The court found the motion had been overtaken by the consent order of the Court of Appeal at Nyeri dated 18-3-2024, which stayed execution of the judgment and decree of 25th May 2023. It held that this stay extended to all forms of execution, including recovery of advocates' costs, and that any execution after the consent order was unlawful and an abuse of process. The motion was allowed only as a restatement of the appellate order.

p. 2

Legal principles established

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  • A Court of Appeal stay of execution covers all forms of execution including advocates' costs; purported execution after such an order is unlawful

Court orders

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  1. 1.Stay of execution of the warrants of arrest issued on 28-5-2024 and all consequential proceedings granted in terms of prayer 2, as a restatement of the Court of Appeal consent order of 18-3-2024
  2. 2.Costs to the Defendant
On appeal from
Court of Appeal at Nyeri
Civil Application No. E101 of 2023
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kamau v Nazamdini; Kiburi, Mwangi Ben & Company Advocates (Interested Party) (Enviromental and Land Originating Summons E037 of 2021) [2025] KEELC 3218 (KLR)", Case Analysis (2025). ELC Case No. 37 of 2021 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3218/eng@2025-04-08

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