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ELCOtherELCA E048 of 2023· [2025] KEELC 3743 (KLR)

Njoroge (Suing on behalf of the Estate of Margaret Wanjiku Ng’ang’a - Deceased) v Mwangi & another (Environment and Land Civil Appeal E048 of 2023) [2025] KEELC 3743 (KLR)

Environment and Land Court
8 May 2025
MOMOGENI
424 words in judgment
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The bottom line

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Once parties consent to settle an appeal in Kenya, any pending stay of execution application automatically falls away and the court file is closed.

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 Thika delivered by Mogani J on 8 May 2025, arising from an appeal (ELCA E048 of 2023) against the judgment of Hon. V. Asiyo delivered on 18 August 2020 in Thika MCELC Case No. 47 of 2019, a land dispute involving a counterclaim seeking cancellation of a title issued on 3 January 2013. Before the court was a Notice of Motion dated 19 December 2024 brought under Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, seeking stay of execution of the magistrate's judgment and all consequential decrees and orders pending determination of the appeal, supported by the affidavit of Moses Ng'ang'a Njoroge. On perusing the court file, the judge found no response filed to the application; instead, there was a consent signed by counsel for both appellants and respondents to the effect that the appeal be marked as settled, and a receipt dated 3 February 2025 for Kshs 93,000 in respect of costs for ELCA E048 of 2023. Holding that the consent rendered the appeal settled and thus left no appeal upon which to base the stay application, the court treated the application as withdrawn and closed the file. The substantive appeal was not determined and the underlying judgment was not disturbed.

Key legal issues

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01

Effect of a consent marking an appeal as settled on a pending stay of execution application

Holding

The application falls away with the appeal; with no appeal subsisting, there is nothing upon which the stay application can be anchored, and the file is closed

Reasoning

The court perused the file and found no response to the application, but instead a consent signed by counsel for both appellants and respondents that the appeal be marked as settled, together with a receipt for costs of Kshs 93,000. Since the appeal no longer exists as a live cause, the stay application, which sought to preserve the position pending determination of the appeal, had no foundation and was treated as withdrawn.

p. 2

Legal principles established

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  • Where parties by consent mark an appeal as settled, a pending application premised on that appeal is rendered moot and is treated as withdrawn

Court orders

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  1. 1.The application for stay of execution is treated as withdrawn since the appeal has been marked as settled by consent
  2. 2.This file is closed
On appeal from
Magistrate's Court at Thika
Thika MCELC Case No. 47 of 2019
Jurisdiction invoked
Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3 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, "Njoroge (Suing on behalf of the Estate of Margaret Wanjiku Ng’ang’a - Deceased) v Mwangi & another (Environment and Land Civil Appeal E048 of 2023) [2025] KEELC 3743 (KLR)", Case Analysis (2025). ELCA E048 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3743/eng@2025-05-08

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