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ELCDismissedNotice of Motion dated 26/08/2024 (arising from Machakos ELC Case No. 181 of 2014)· [2025] KEELC 3878 (KLR)

Republic v County Secretary, County Government of Machakos & another; Mbondo & another (Exparte) (Suing on behalf of the Estate of Elijah Mbondo Ntheketha) (Environment and Land Judicial Review Case E011 of 2021) [2025] KEELC 3878 (KLR)

Environment and Land Court
13 May 2025
AKA. Y. Koross
1,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court refused to stay execution, holding there was no decree capable of being stayed because the ruling targeted on appeal simply dismissed a motion.

What this practically means

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Executive summary

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The respondents, the County Government of Machakos and others, moved the Environment and Land Court at Machakos by notice of motion dated 26/08/2024 seeking a stay of execution pending the hearing and determination of Nairobi Civil Appeal No. E098 of 2024 (County Government of Machakos v Serah Muthio Mbondo & 2 Others). It was contended that the appeal was arguable and that execution of colossal decretal sums would render it nugatory. The ex parte applicants opposed, arguing that no appeal had been preferred against the judgment in Machakos ELC Case No. 181 of 2014 (dated 18/09/2020) or the judgment entered on 12/10/2022, and that Order 42 Rule 6 was inapplicable. The court adopted the single issue of whether the motion was merited. Applying Order 42 Rule 6(2) — substantial loss, no unreasonable delay, and security — and the principles in Halai v Thornton & Turpin, the court held that claims that the appeal was arguable or would be rendered nugatory are matters for the Court of Appeal, not the court appealed from. Scrutiny of the memorandum of appeal showed the appeal targeted only the ruling of 16/10/2023, which merely dismissed the County Government's notice of motion dated 27/03/2023. Relying on Western College v Oranga as approved in Kaushik Panchamatia v Prime Bank, the court found there was nothing to be executed or stayed. The 2nd respondent was found to have misled the court on the subject of the appeal. Alice Mwelu Mbondo's grounds of opposition were expunged as she had not prosecuted her joinder application. The motion was dismissed with costs to the ex parte applicants and the file marked as closed.

Key legal issues

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01

Whether the respondents satisfied the Order 42 Rule 6(2) conditions for a stay of execution pending appeal

Holding

The motion was dismissed because there was no decree capable of execution — the ruling of 16/10/2023 merely dismissed a notice of motion — and the Order 42 Rule 6(2) tests were therefore inapplicable and unsatisfied.

Reasoning

The court, as the court appealed from, is limited to the Order 42 Rule 6(2) criteria: substantial loss, no unreasonable delay and security. It found the respondents had not appealed against the relevant judgments, and the 2nd respondent had misled the court as to the subject of the appeal. Relying on Western College v Oranga, as approved in Kaushik Panchamatia v Prime Bank, where a ruling merely dismissed a motion, nothing exists for execution or to stay, so the discretion need not be exercised.

p. 4
02

Whether the interested party's (Alice Mwelu Mbondo's) grounds of opposition could stand

Holding

They were expunged from the record as she is a stranger to the proceedings, having never prosecuted her application for joinder.

Reasoning

The court noted that the law firm of M/s. Gitonga Muriuki & Co. Advocates purported to act for Alice Mwelu Mbondo as interested party, respondent or decree holder, but from the record she had never prosecuted her application dated 2/06/2023 for joinder, so she lacked standing in these proceedings and her grounds of opposition were expunged.

p. 2

Legal principles established

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  • A court hearing a stay-of-execution application is bound by the Order 42 Rule 6(2) conditions of substantial loss, no unreasonable delay and security; assertions that an appeal is arguable or will be rendered nugatory are matters for the appellate court, not the court appealed from.
  • Where the decision sought to be stayed merely dismissed a motion and imposed no obligation to do, refrain from, or pay anything, there is nothing to be executed and no stay can issue.

Court orders

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  1. 1.That the notice of motion dated August 26, 2024 is hereby dismissed with costs to the ex parte applicants.
  2. 2.The file is hereby effectively marked as closed.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2)
  • Civil Procedure ActSections 1A and 1B

Cases cited (3)

  • Halai and Another vs. Thornton & Turpin [1963] Limited
    [1990] eKLR
  • Western College Farts and Applied Sciences vs. Oranga & Others
    [1976] KLR 63
  • Kaushik Panchamatia & 3 others v Prime Bank Limited & another
    [2020] KECA 418 (KLR)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, read with Sections 1A and 1B 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, "Republic v County Secretary, County Government of Machakos & another; Mbondo & another (Exparte) (Suing on behalf of the Estate of Elijah Mbondo Ntheketha) (Environment and Land Judicial Review Case E011 of 2021) [2025] KEELC 3878 (KLR)", Case Analysis (2025). Notice of Motion dated 26/08/2024 (arising from Machakos ELC Case No. 181 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3878/eng@2025-05-13

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