Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNgong ELC Appeal (arising from Ngong E.L.C. Case No. 41 of 2018)· [2025] KEELC 3704 (KLR)

Owour & 3 others (2nd and 3rd Appellants Suing as the Administrators of the Estate of Dr. John Moroiyiani Ole Tameno alias John Tameno - Deceased) v Senior Chief, Kibiko Location & 2 others (Environment and Land Appeal E039 of 2024) [2025] KEELC 3704 (KLR)

Environment and Land Court
5 May 2025
1,929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to pause execution of a land judgment because the appellants could not show they would suffer substantial loss.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kajiado (Ngong), delivered virtually on 5th May 2025 by L. Komingoi J, on a Notice of Motion dated 20th August 2024 by the Appellants in an appeal against the judgment of Hon. P. Achieng (CM) in Ngong E.L.C. Case No. 41 of 2018. The Appellants sought a stay of execution of the judgment and consequential decree of 22nd August 2024 and a temporary injunction against any dealings in parcels KJD/Ngong/Ngong/11423, Ngong/Ngong/2890, 2895, 2896 and 2897 pending the appeal. The 2nd Respondent opposed, arguing that the requirements of Order 42 rule 6 were not met, that no stay could lie on a negative order, and that an injunction would delay its statutory mandate under Section 7 of the Kenya Roads Act to demarcate a road reserve. The Court framed three issues: compliance with Order 42 rule 6, entitlement to an injunction pending appeal, and costs. Relying on Feissal Amin Jan Mohammed and Patricia Njeri, the Court found the Appellants had not demonstrated substantial loss, noting the Ngong District Surveyor's report of 2nd November 2021 which concluded there were irregularities in the manner the suit properties came into existence, and was not satisfied that refusal of the injunction would render the appeal nugatory. The application was dismissed with costs to the 2nd Respondent. The underlying appeal remains pending.

Key legal issues

#
01

Whether the requirements of Order 42 rule 6(2) for stay of execution were met

Holding

The Appellants failed to establish substantial loss; the application did not meet the rule's conditions

Reasoning

The Court considered the affidavits and noted that the Ngong District Surveyor's report dated 2nd November 2021 concluded there were irregularities in the manner the suit properties came into existence. The Appellants' claim that they would lose their properties if the 2nd Respondent constructed a road was not sufficient to demonstrate substantial loss, and the application failed the Order 42 rule 6(2) threshold.

p. 5
02

Whether temporary injunction pending appeal ought to issue

Holding

Refused; the appeal would not be rendered nugatory without the injunction

Reasoning

Applying the principles in Patricia Njeri & 3 others v National Museum of Kenya, the Court noted that injunction pending appeal is discretionary, refused where the appeal is frivolous or where greater hardship would result, and requires that refusal would render the appeal nugatory. The Court was not persuaded that refusal of the injunction would render the appeal nugatory, and declined to grant the injunction.

p. 5

Legal principles established

#
  • An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and offer security
  • An order of injunction pending appeal will not issue where the appeal is not rendered nugatory by its refusal

Court orders

#
  1. 1.The Notice of Motion dated 20th August 2024 is dismissed
  2. 2.Costs of the application to the 2nd Respondent
On appeal from
Chief Magistrate's Court, Ngong (Environment and Land)
Ngong E.L.C. Case No. 41 of 2018
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (2010); Section 26(1) of the Land Registration Act, Cap 300; Article 159(2)(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Owour & 3 others (2nd and 3rd Appellants Suing as the Administrators of the Estate of Dr. John Moroiyiani Ole Tameno alias John Tameno - Deceased) v Senior Chief, Kibiko Location & 2 others (Environment and Land Appeal E039 of 2024) [2025] KEELC 3704 (KLR)", Case Analysis (2025). Ngong ELC Appeal (arising from Ngong E.L.C. Case No. 41 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3704/eng@2025-05-05

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