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ELCDismissedMCELC Appeal arising from MCELC No. E376 of 2024 (consolidated with MCELC No. E296 of 2024)· [2025] KEELC 3906 (KLR)

Maxitize Kenya Limited v Elegant Gems Ltd & 3 others (Environment and Land Appeal E194 of 2024) [2025] KEELC 3906 (KLR)

Environment and Land Court
22 May 2025
MCMBOGO C.G.
2,786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to halt enforcement of an order requiring Elegant Gems to deposit Kshs. 12.5 million while it appeals.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 26th November 2024 in which the appellant, Elegant Gems Ltd, sought stay of execution of a ruling delivered on 21st November 2024 by the trial court, and a stay of further proceedings in MCELC No. E376 of 2024 (consolidated with MCELC No. E296 of 2024), pending its appeal. The trial court had ordered the appellant to deposit in court Kshs. 12,500,000 it had received from the 1st respondent as purchase price, on the basis of exceptional circumstances concerning school-going minors, pending determination of the suit. The application, supported by the affidavit of Michael Mutembei Kibutha, was opposed by the 1st respondent through grounds of opposition and the affidavit of Amos Gitau, and by the 2nd respondent's replying affidavit, all contending that the interlocutory orders placed the parties on an equal footing and that no substantial loss was demonstrated. The court framed a single issue: whether the appellant was entitled to stay of execution and further proceedings pending appeal. Applying Order 42 Rule 6(2), the court identified the three conditions of substantial loss, absence of unreasonable delay, and security. It found the appellant's arguments were directed at matters alive before the trial court, that no substantial loss was demonstrated, and that the appellant was silent on security for costs. The application was dismissed with costs in the cause, the court urging expedited hearing of the appeal and directing further mention on 19th June 2025.

Key legal issues

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01

Whether the appellant met the Order 42 Rule 6(2) conditions for stay of execution pending appeal

Holding

The application failed as the appellant did not demonstrate substantial loss nor propose security for costs

Reasoning

The court restated the three conditions under Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. It found the appellant's arguments were directed at issues alive before the trial court, that no substantial loss was demonstrated, and that the appellant was silent on security for costs. The application therefore fell short of the statutory threshold.

p. 6
02

Whether stay of proceedings in the trial court should issue pending appeal

Holding

Stay of proceedings was refused since the main application for stay of execution failed

Reasoning

The court held that the mere filing of an appeal does not automatically stay proceedings; sufficient cause must be shown. Having found the appellant failed to satisfy the stay-of-execution conditions, the court saw no basis to stay the trial court proceedings and instead urged the parties to expedite the hearing of the appeal.

p. 5

Legal principles established

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  • The purpose of stay of execution pending appeal is to preserve the subject matter of the dispute so a successful appeal is not rendered nugatory
  • An applicant for stay must demonstrate substantial loss, bring the application without unreasonable delay, and offer security

Court orders

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  1. 1.The notice of motion dated 26th November, 2024 is dismissed
  2. 2.Costs in the cause
  3. 3.Further mention on 19th June, 2025 for further directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2), Order 51 Rule 1
  • Constitution of Kenya, 2010Articles 50, 165(3)(a), 169

Cases cited (15)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Kenya Commercial Bank v Hon Nicholas Ombija
    Civil Appeal No. 153 of 2009
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Total Kenya Limited v Kenya Revenue Authority
    [2013] eKLR
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Mugo & another v Mwaura
    [2022] KEHC 14244 (KLR)
  • Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Limited
    [2014] eKLR
  • Tabro Transporters Ltd v Absalom Dova Lumbasi
    [2012] eKLR
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • Mocha Hotel Ltd v Kwanza Estates Ltd
    [2023] KEELC 21729 (KLR)
  • Machira T/A Machira & Co. Advocates v East African Standard
    [2002] KLR 63
  • Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 others
    [2014] eKLR
  • Francis Njakwe Githiari & another v Daniel Toroitich Arap Moi t/a Moi Educational Centre
    [2006] eKLR
  • Consolidated Marine vs. Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
On appeal from
Magistrates' Court (ELC)
MCELC No. E376 of 2024
Jurisdiction invoked
Articles 50, 165(3)(a) and 169 of the Constitution; Sections 1A and 3A of the Civil Procedure Act; Order 42 Rule 6 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, "Maxitize Kenya Limited v Elegant Gems Ltd & 3 others (Environment and Land Appeal E194 of 2024) [2025] KEELC 3906 (KLR)", Case Analysis (2025). MCELC Appeal arising from MCELC No. E376 of 2024 (consolidated with MCELC No. E296 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3906/eng@2025-05-22

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