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)
The bottom line
#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
#Executive summary
#Key legal issues
#Stay of proceedings pending appeal
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.
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.
Stay of execution pending appeal - substantial loss
Substantial loss demonstrated because the injunctive orders effectively dispossess the Appellants despite contested possession.
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.
Security for due performance
Security not required because what is being appealed is an interlocutory ruling.
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.
Legal principles established
#- 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
#- 1.Stay of proceedings in MCELC E431 of 2024 pending the hearing and determination of the Appeal
- 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.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.Orders conditioned on filing and service of the Record of Appeal within 60 days
- 5.Costs of the application to abide the outcome of the Appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.