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ELCPartially AllowedNot stated in judgment (appeal from subordinate court; motion dated 21-2-2025)· [2025] KEELC 3922 (KLR)

Ndungu & another v Kamau (Suing as an Administrator to the Estate of Damaris Wanjiku - Deceased) & another (Environment and Land Appeal E006 & E007 of 2024 (Consolidated)) [2025] KEELC 3922 (KLR)

Environment and Land Court
19 May 2025
905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to stay execution but barred the landowner from selling, transferring or charging the disputed land while the appeal is decided.

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 Murang'a (M. N. Gicheru J) on a notice of motion dated 21-2-2025 by the Respondent, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6(1) and Order 43 of the Civil Procedure Rules. The Respondent sought a stay of execution of the judgment of 29-1-2025, by which the court had set aside the judgment of the lower court in favour of the Appellant, pending her intended appeal to the Court of Appeal. She argued she risked irreparable harm and substantial loss if the Appellant alienated the suit land, and offered security. The Appellant opposed, contending the orders of 29-1-2025 were negative orders incapable of being stayed, costs had been ordered to be borne by each party, and the Respondent had not shown an arguable appeal. No submissions were filed by either counsel. The court applied the Order 42 rule 6(2) test and found that substantial loss would ensue if the land were alienated, rendering the appeal nugatory; that a 23-day delay was not unreasonable; and that no security was necessary since the Respondent had neither possession nor registration. The motion was allowed only in a limited manner: an order of inhibition was issued prohibiting any sale, transfer or charging of the suit land pending the appeal, with costs of the application to await the outcome of the appeal.

Key legal issues

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01

Substantial loss and nugatory appeal

Holding

If the suit land were alienated during the pendency of the appeal, the appeal would be rendered nugatory as there would be no suit land for the Respondent at the end of the litigation

Reasoning

The court found the Appellant to be both registered owner and in occupation, meaning the worst that could befall the Respondent was alienation of the land. An inhibition protecting the suit land from sale, transfer or charging preserved the substratum of the intended appeal without prejudicing the Appellant, who would remain in occupation as registered owner.

p. 2
02

Unreasonable delay

Holding

A period of 23 days between the judgment of 29-1-25 and the motion of 21-2-2025 is not an unreasonable delay

Reasoning

Order 42 rule 6(2) requires that the application be made without unreasonable delay. Comparing the dates of the judgment and the motion, the court concluded that 23 days was not long, satisfying that limb of the test.

p. 2
03

Security for due performance

Holding

No security needed to be ordered because the Respondent has neither possession nor registration of the suit land, which remain with the Appellant

Reasoning

The security limb of Order 42 rule 6(2) exists to ensure due performance of any decree ultimately binding on the applicant. Since the position on the ground already leaves possession and registration with the Appellant, imposing a security burden on the Respondent would serve no purpose.

p. 3

Legal principles established

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  • Under Order 42 rule 6(2) CPR, no stay of execution shall be made unless substantial loss is shown, the application is made without unreasonable delay, and security for due performance of the decree is given

Court orders

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  1. 1.An order of inhibition to issue prohibiting any sale, transfer or charging of the suit land pending the hearing and determination of the appeal in the Court of Appeal
  2. 2.Costs of the application to await the outcome of the appeal in the Court of Appeal
On appeal from
Court of Appeal (intended appeal); original appeal from the lower court (magistrates' court)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 rule 6(1) and Order 43 of the Civil Procedure Rules; inherent powers of the Court

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, "Ndungu & another v Kamau (Suing as an Administrator to the Estate of Damaris Wanjiku - Deceased) & another (Environment and Land Appeal E006 & E007 of 2024 (Consolidated)) [2025] KEELC 3922 (KLR)", Case Analysis (2025). Not stated in judgment (appeal from subordinate court; motion dated 21-2-2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3922/eng@2025-05-19

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