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ELCDismissedNotice of Motion dated 23rd December 2024 in pending Appeal from Molo MCELC No. E043 of 2022· [2025] KEELC 4289 (KLR)

Rotich v Kiplagat (Suing as the Legal Representative of the Estate of Hosea Kiplagat Mundui (Deceased)) (Environment and Land Appeal E068 of 2024) [2025] KEELC 4289 (KLR)

Environment and Land Court
9 June 2025
MOM. A. Odeny
1,875 words in judgment
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The bottom line

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A Kenyan land appeal court refused to pause eviction, ruling that fear of losing your land is not proof unless backed by real evidence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determines a Notice of Motion dated 23rd December 2024 by the Appellant, Philip Rotich, seeking stay of execution of the judgment and decree issued on 18th November 2024 in Molo MCELC No. E043 of 2022 (Hellen Kimooi Kiplagat v Philip Rotich), in which the subordinate court upheld the Respondent's deceased husband's title over land known as Molo South/Langwenda Block 11/651 (Kewamoi). The Appellant deponed that he purchased the land in 1990 and feared forcible eviction or disposal to third parties. The Respondent opposed, asserting the Appellant is a trespasser since 2014. The sole issue was whether the Appellant met the Order 42 Rule 6 conditions: no undue delay, substantial loss, and security. The court found no delay, but held that the Appellant failed to prove substantial loss; mere apprehension of eviction, and the assertion of 34 years' occupation with developments, were insufficient without empirical or documentary evidence, citing Samvir Trustees, Tropical Commodities, Karungu v Masira and Charles Wahome Gethi. An arguable appeal alone did not warrant stay, since a successful appeal can undo what has been done. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the application for stay of execution met the conditions in Order 42 Rule 6

Holding

The application was dismissed because the Appellant did not prove substantial loss; imminent eviction alone does not constitute substantial loss without empirical or documentary evidence.

Reasoning

The court applied the three limbs of Order 42 Rule 6: no undue delay, substantial loss, and security. Delay was not an issue as the application was filed timeously. However, relying on Samvir Trustees, Tropical Commodities and Karungu v Masira, the court held that the Appellant's apprehension of eviction from land he occupied since 1990 was mere assertion of loss, not proof of substantial loss; an arguable appeal alone does not justify stay.

p. 5

Legal principles established

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  • Imminent eviction under a lawful decree is not, by itself, proof of substantial loss for purposes of stay of execution
  • Where substantial loss is not shown, stay should be refused because a successful appeal can remedy what has been done

Court orders

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  1. 1.The application dated 23rd December, 2024 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 12
  • Civil Procedure RulesOrder XLI rule 4 (2)(b) (as cited in Butt v Rent Restriction Tribunal)

Cases cited (11)

  • Jamii Bora Bank Limited & Another vs Samuel Wambugu Ndirangu
  • Butt vs Rent Restriction Tribunal
    [1979] KLR 417 (also cited as (1982) KLR 417)
  • Shell Ltd vs Kibiru and Another
    [1986] KLR 410
  • Jessikay Enterprises Ltd vs George Kahoto Muiruri
    [2022] eKLR
  • Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Mohammed Abdi Mohammud vs Ahmed Abdulahi & 3 others
    (2018)
  • Samvir Trustees Ltd. vs Guardian Bank Ltd.
    Nairobi (Milimani) HCCC No. 795 of 1997
  • Tropical Commodities Suppliers Limited 7 others v International Credit Bank Ltd (in liquidation)
    (2004) 2 EA 331
  • Karungu v Masira & another
    (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR)
  • Charles Wahome Gethi vs. Angela Wairimu Gethi
    [2008] eKLR
  • Nairobi Women's Hospital vs. Purity Kemunto
    [2018] eKLR
On appeal from
Molo Magistrates' Court (Environment and Land)
Molo MCELC No. E043 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over the subordinate court decision)

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, "Rotich v Kiplagat (Suing as the Legal Representative of the Estate of Hosea Kiplagat Mundui (Deceased)) (Environment and Land Appeal E068 of 2024) [2025] KEELC 4289 (KLR)", Case Analysis (2025). Notice of Motion dated 23rd December 2024 in pending Appeal from Molo MCELC No. E043 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4289/eng@2025-06-09

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