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ELCPartially Allowed· [2025] KEELC 4251 (KLR)

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)

Environment and Land Court
29 May 2025
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (E.C. Cherono, ELC Judge) on a Notice of Motion dated 13/02/2025 brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules, seeking stay of execution of a lower court decree dated 15/08/2024 ordering the Applicants' eviction from land parcel E.Bukusu/S.Kanduyi/4473. The lower court had also dismissed the Applicants' counterclaim for adverse possession, issued a permanent injunction against them and awarded damages of Kshs. 1,000,000/-. An earlier stay application before the trial court was allowed on condition that the Applicants deposit Kshs. 1,000,000/= as security, which they could not meet. The Respondent opposed, arguing the court lacked jurisdiction since a similar application had already been determined by the trial court. The court applied Lochab Transport Limited v Teresia Wanoari to hold that Order 42 Rule 6(1) confers a separate original jurisdiction to consider stay notwithstanding the earlier ruling. On the merits, applying the three prerequisites in Antoine Ndiaye v African Virtual University, the court found the 46-day delay not inordinate, found substantial loss established because eviction and demolition would render the appeal nugatory, and declined to impose security, instead directing expedition of the appeal. The application was allowed with each party bearing their own costs; the Applicant was ordered to file the appeal within 30 days and prosecute it within 12 months.

Key legal issues

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01

Jurisdiction to entertain a second application for stay pending appeal

Holding

The court has jurisdiction notwithstanding the earlier conditional grant of stay by the trial court

Reasoning

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.

p. 3
02

Whether the application was brought without undue delay

Holding

The delay of approximately 46 days after expiry of the lower court's compliance period was not inordinate

Reasoning

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.

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Whether the Applicants would suffer substantial loss

Holding

Substantial loss was established as eviction and demolition would render the appeal nugatory

Reasoning

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.

p. 4
04

Security for due performance of the decree

Holding

The court exercised its discretion not to impose security, directing the Applicants instead to fast-track the appeal

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.No security imposed on the Applicants; instead, direction to fast-track the hearing of the appeal
  3. 3.Applicant/Appellant ordered to file his appeal within 30 days of the ruling and to prosecute the appeal within 12 months
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A & 63(e)
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Land ActSections 152E and 152F

Cases cited (8)

  • Mutava Kioko alias Mutava Kioko (Deceased) (Succession Appeal E004 of 2023)
    [2024] KEHC 9739 (KLR)
  • Lochab Transport Limited v Teresia Wanoari & Another
    [2015] eKLR
  • Matata & another v Rono & another
    Civil Appeal E034 of 2024 [2024] KEHC 2799 (KLR)
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Silverstein v Chesoni
    (2002) 1 KLR 867
  • Githunguri v Jimba Credit Corporation Ltd (No.2)
    [1988] 838
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

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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, "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.