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ELCAllowedMilimani Environment and Land Case No E431 of 2024 (Appeal)· [2025] KEELC 3821 (KLR)

Hassan & another v Makacy & 2 others (Sued as the Chairman, Secretary and Treasurer Respectively of East Sidaz Self Help Youth Group) (Environment and Land Appeal E224 of 2024) [2025] KEELC 3821 (KLR)

Environment and Land Court
15 May 2025
6,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court paused both the case and enforcement of an injunction over disputed Nairobi land until the appeal is decided.

What this practically means

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Executive summary

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The Appellants, Musa Said Hassan and Tanad Transporters Limited, moved the Environment and Land Court by Motion dated 19th December 2024 seeking stay of execution of, and stay of proceedings consequent upon, the ruling of Hon A. Mukenga, PM, delivered on 11th December 2024 in MCELC No E431 of 2024, pending appeal. The trial court had granted the Respondents, a Self Help Group claiming ownership of L.R X6/IV/R on the strength of a 1999 allotment letter, a temporary injunction restraining the Appellants from dealing with the disputed parcel. The Appellants claimed registered title to L.R X6/IV/1X7, contended the trial court lacked pecuniary jurisdiction given a property value of about Kshs 40 million, and asserted prior litigation had settled ownership in their favour. The Respondents opposed, arguing the Appellants had not demonstrated substantial loss, arguability, or expeditiousness, and that they were in occupation as evidenced by rent receipts. The court framed two issues: stay of proceedings and stay of execution. It found the application filed within 8 days of the ruling, hence no delay; the appeal arguable, particularly on jurisdiction and possession; and held that failure to stay would render the appeal nugatory given the jurisdictional uncertainty. On execution, it found the injunction's practical effect was potential dispossession, satisfying substantial loss, and held security unnecessary for an interlocutory appeal. The court stayed both proceedings and execution, restrained both parties from all dealings with either parcel, conditioned the orders on filing the Record of Appeal within 60 days, and ordered costs to abide the appeal.

Key legal issues

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01

Stay of proceedings pending appeal

Holding

Stay of proceedings granted because the appeal raises arguable grounds, including jurisdiction of the trial court, and failure to stay would render the appeal nugatory.

Reasoning

The court applied the six principles in William Odhiambo Ramogi and the Global Tours & Travels factors. The appeal was filed within 8 days so there was no delay. The jurisdictional challenge was fundamental since proceedings without jurisdiction are a nullity, and continuing proceedings under jurisdictional uncertainty would render the appeal nugatory.

p. 8
02

Stay of execution pending appeal - substantial loss

Holding

Substantial loss demonstrated because the injunctive orders effectively dispossess the Appellants despite contested possession.

Reasoning

Although the trial court granted injunctive rather than eviction orders, the practical effect was to dispossess the Appellants, who claim to hold a title, while the question of possession is a central issue on appeal. The orders did not preserve the status quo but gave the Respondent undisturbed access and possession.

p. 11
03

Security for due performance

Holding

Security not required because what is being appealed is an interlocutory ruling.

Reasoning

Citing Arun C Sharma and Focin Motorcycle, the court held that the provision of security is discretionary and determined by the court. Given that the ruling appealed against was interlocutory, the court did not consider security necessary.

p. 12

Legal principles established

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  • Stay of proceedings pending appeal in civil matters is a rare and exceptional remedy; proceedings ought to continue without interruption until determination.
  • An arguable appeal is one which is not frivolous and need not necessarily succeed.
  • Jurisdiction is a threshold question which must be resolved promptly once raised.

Court orders

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  1. 1.Stay of proceedings in MCELC E431 of 2024 pending the hearing and determination of the Appeal
  2. 2.Stay of execution of the ruling and consequential orders of the Hon A. Mukenga, PM, delivered on 11th December, 2024 in MCELC No E431 of 2024
  3. 3.Both Appellants and Respondents, their agents and servants, restrained from any and all dealings with the parcel known as L.R No. X6/IV/R and/or L.R X6/IV/1X7 pending the Appeal
  4. 4.Orders conditioned on filing and service of the Record of Appeal within 60 days
  5. 5.Costs of the application to abide the outcome of the Appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 3
  • Civil Procedure Rules, 2010Order 22 Rule 22(1); Order 42 Rule 6(1) and (2); Order 51 Rule 1
  • Environment and Land Court ActSection 3
  • Constitution of KenyaArticle 50

Cases cited (19)

  • Ferdinard Ndung'u Waititu vs Independent Electoral & Boundaries Commission (IEBC) & 8 others
    [2013] eKLR
  • Masai & Another vs Masai & another
    (Civil Application 148 of 2020) [2021] KECA 170 (KLR)
  • Stanley Kang'ethe Kinyanjui vs Tony Ketter & 5 Others
    [2013] eKLR; [2013] KECA 378 (KLR)
  • Owners of Motor Vessel Lilian S vs Caltex Oil (K) Ltd
    (1989) eKLR
  • Samuel Kamau Macharia vs Kenya Commercial Bank Ltd
    [2012] eKLR
  • Vishram Ravji Halai vs Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR
  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
  • Antoine Ndiaye vs African Virtual University
    [2015] eKLR
  • Jaber Mohsen Ali & another vs Priscillah Boit & Another
    [2014] eKLR
  • Utalii Transport Company Limited & 3 Others vs NIC Bank Limited & Another
    [2014] eKLR
  • Rhoda Mukuma vs John Abuoga
    [1988] eKLR
  • Muri Mwaniki & Wamiti Advocates vs Wings Engineering Services Limited
    [2020] eKLR
  • Kenya Shell Limited vs Benjamin Karuga Kibiru & Another
    [1986] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Machira T/A Machira & Co Advocates vs East African Standard
    [2002] eKLR
  • Arun C Sharma vs Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others
    [2014] eKLR
  • Focin Motorcycle C. Ltd vs Ann Wambui Wangui
    [2018] eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No.43 of 2000
  • William Odhiambo Ramogi & 2 Others vs the Honourable Attorney General & 3 Others
    [2020] eKLR
On appeal from
Chief Magistrate's Court at Nairobi, Environment and Land
Milimani Court Environment and Land Case No E431 of 2024
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6, Order 22 Rule 22(1) and Order 51 Rule 1 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, "Hassan & another v Makacy & 2 others (Sued as the Chairman, Secretary and Treasurer Respectively of East Sidaz Self Help Youth Group) (Environment and Land Appeal E224 of 2024) [2025] KEELC 3821 (KLR)", Case Analysis (2025). Milimani Environment and Land Case No E431 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3821/eng@2025-05-15

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