Wekesa & another v Milimo (Suing as the Administrator of the Estate of Andrew Milimo Mufutu) (Environment and Land Appeal E039 of 2024) [2025] KEELC 4251 (KLR)
The bottom line
#A Kenyan land court stopped an eviction pending appeal, confirming you can seek stay of execution in the higher court even after the lower court has ruled on it.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain a second application for stay pending appeal
The court has jurisdiction notwithstanding the earlier conditional grant of stay by the trial court
Relying on Lochab Transport Limited v Teresia Wanoari, the court held that Order 42 Rule 6(1) clothes the higher court with a separate original jurisdiction to consider stay applications once a substantive appeal exists. It matters not that the lower court already allowed a stay on conditions, and insisting on a separate appeal from that ruling would cause duplication and delay.
Whether the application was brought without undue delay
The delay of approximately 46 days after expiry of the lower court's compliance period was not inordinate
The lower court's ruling on the earlier stay application was delivered on 23/10/2024 with 60 days for compliance. The present application was filed on 15/02/2025, about 46 days after expiry of that period. Though unexplained, the court found the delay reasonable.
Whether the Applicants would suffer substantial loss
Substantial loss was established as eviction and demolition would render the appeal nugatory
The Applicants showed that failure to grant stay would expose them to eviction and demolition of their developments on the suit land, causing irreparable loss and negating the essential core of the appeal. The court accepted this as sufficient demonstration of substantial loss under Order 42 Rule 6.
Security for due performance of the decree
The court exercised its discretion not to impose security, directing the Applicants instead to fast-track the appeal
Security is discretionary. Given the circumstances and the Applicants' offer of the developments on the suit land as security, the court found it in the interest of justice that no monetary security be imposed, conditioning the stay instead on expeditious prosecution of the appeal.
Legal principles established
#- The High Court exercises original and appellate jurisdiction over applications for stay pending appeal under Order 42 Rule 6(1), irrespective of whether a similar application was allowed or rejected by the lower court
- Stay pending appeal requires: (a) application without undue delay; (b) substantial loss; and (c) such security as the court orders for due performance of the decree
- Substantial loss is the loss that has to be prevented by preserving the status quo because such loss would render the appeal nugatory
Court orders
#- 1.Stay of execution of the decree of the lower court dated 15/08/2024 sanctioning eviction from land parcel no. E.Bukusu/S.Kanduyi/4473, pending hearing and determination of the appeal
- 2.No security imposed on the Applicants; instead, direction to fast-track the hearing of the appeal
- 3.Applicant/Appellant ordered to file his appeal within 30 days of the ruling and to prosecute the appeal within 12 months
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa & another v Milimo (Suing as the Administrator of the Estate of Andrew Milimo Mufutu) (Environment and Land Appeal E039 of 2024) [2025] KEELC 4251 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4251/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.