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ELCAllowedNot stated in judgment (appeal from Nyeri CMELC No. 201 of 2018)· [2025] KEELC 4109 (KLR)
Wangombe & another v Mureithi & another (Environment and Land Appeal E029 of 2024) [2025] KEELC 4109 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court stopped an eviction because removing the occupants would make their pending land appeal pointless.
What this practically means
#Executive summary
#This is a ruling on a Notice of Motion dated 24th September 2024 by Timothy Muriithi Wangombe and Lydia Nyokabi Muriithi, seeking stay of execution of the Ruling and orders of 5th September 2024 in Nyeri CMELC No. 201 of 2018, which ordered their eviction within 30 days. The Appellants argued the orders had no basis in the decree, that eviction would cause substantial loss and hardship, and would render their appeal nugatory. The 2nd Respondent, Joseph Njaramba Wandimi, opposed, noting the Appellants had not filed a Record of Appeal three years after lodging the appeal, and that since a boundary dispute began in 1989 he has been unable to use and cultivate the disputed portion of land. The trial suit, in which the Appellants sought a declaration of adverse possession over some 3 acres, was dismissed on 20th May 2021; their appeal, Nyeri ELCA No. E037 of 2021, remains pending. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the principles in RWW v EKW [2019] eKLR, J.O. Olola J observed that the Respondents had obtained eviction orders in an Originating Summons in which no counterclaim had been filed, and that eviction would render the pending appeal nugatory. The court found merit in the Motion and allowed it in terms of Prayer 'C', staying execution pending appeal, with costs of the application to abide the outcome of the Appeal.
Key legal issues
#01
Whether stay of execution pending appeal should issue
Holding
Stay granted; eviction would render the pending appeal nugatory and the subject matter had to be preserved
Reasoning
The Appellants' suit for adverse possession was dismissed and their appeal (Nyeri ELCA No. E037 of 2021) is pending. The 2nd Respondent obtained eviction orders in an Originating Summons in which no counterclaim was filed. The court found eviction would render the appeal nugatory and it was fair and just to preserve the subject matter in dispute.
p. 3
Legal principles established
#- The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so the appeal is not rendered nugatory, while weighing the successful litigant's right to the fruits of judgment
Court orders
#- 1.Stay of execution of the Ruling and orders made on 5th September 2024 in Nyeri CMELC No. 201 of 2018 granted in terms of Prayer 'C' of the Motion dated 24th September 2024, pending the hearing and determination of the Appeal
- 2.Costs of the application to abide the outcome of the Appeal
- On appeal from
- Nyeri Chief Magistrate's Court (Environment and Land)
- CMELC No. 201 of 2018
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wangombe & another v Mureithi & another (Environment and Land Appeal E029 of 2024) [2025] KEELC 4109 (KLR)", Case Analysis (2025). Not stated in judgment (appeal from Nyeri CMELC No. 201 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4109/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.