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ELCDismissedAppeal against the Judgment in Milimani MCELC No. E219 of 2022· [2025] KEELC 4400 (KLR)

Wanyoike v Embakasi Ranching Company Limited & 3 others (Environment and Land Appeal E200 of 2024) [2025] KEELC 4400 (KLR)

Environment and Land Court
12 June 2025
2,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a stay of execution application, confirming that appeals do not automatically freeze a judgment in Kenya.

What this practically means

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Executive summary

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By a Notice of Motion dated 10/03/2025 under Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the Appellant sought stay of execution of the judgment of Hon. P.K. Rotich delivered on 30/10/2024 in Milimani MCELC No. E219 of 2022, which dismissed his suit with costs and awarded the 2nd Respondent LR Nairobi Block 105/1156. The Appellant argued he would suffer substantial loss if the decree were executed, that the appeal had high chances of success, and offered to abide by security conditions. The 2nd Respondent opposed, contending the application was defective because the incoming advocate never obtained leave under Order 9 Rule 9, that it was filed late, that only costs of Kshs. 76,000 were being pursued, and that she was already in occupation of the suit land. The court framed three issues. First, it held the application was not defective, reasoning that Order 9 Rule 9 and 10 do not apply on appeal since instructions in the lower court are exhausted at conclusion. Second, applying Order 42 rule 6(2), the court found the applicant failed to show substantial loss or to offer security; further, the judgment was a negative order incapable of execution save for costs. The application was dismissed with costs to the 2nd Respondent on 12 June 2025.

Key legal issues

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01

Whether the application was defective for lack of leave to come on record after judgment

Holding

The application was not defective; Order 9 Rule 9 does not apply on appeal as instructions are exhausted at conclusion of the lower court matter

Reasoning

The court held that requiring leave for a new advocate to come on record on appeal would deny an appellant the right to legal representation of choice at the appellate stage. The purpose of Order 9 Rule 9 was to protect advocates from being sacked at execution stage, a mischief not present in appeals.

p. 3
02

Whether the applicant satisfied the conditions for stay of execution under Order 42 rule 6(2)

Holding

The conditions were not met: no substantial loss shown, and no security offered

Reasoning

The applicant did not show how execution would irreparably affect him or render the appeal nugatory. The judgment was a negative order incapable of execution. The applicant offered no security, and the respondent's capacity to refund costs was not challenged.

p. 4

Legal principles established

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  • Order 9 Rule 9 and 10 of the Civil Procedure Rules does not apply to change of advocates at the appellate stage
  • An appeal does not operate as an automatic stay of execution; the conditions under Order 42 rule 6 must be met
  • A negative order (dismissal of suit) is incapable of execution save for costs

Court orders

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  1. 1.The application dated 10/03/2025 lacks merit and is hereby dismissed with costs to the 2nd Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9 and 10
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G

Cases cited (7)

  • Magereza Savings & Credit Co-operative Society Limited v Samuel Gachini Wahiu & 881 others
    [2014] eKLR
  • Martin Mutisya Kiio & Another v Benson Mwendo Kasyali
    Machakos High Court Misc. Application No. 107 of 2013
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah
    [2008] eKLR
  • Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others
    [2014] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited
    [2007] eKLR
On appeal from
Chief Magistrate's Court at Milimani (MCELC)
E219 of 2022
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A 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, "Wanyoike v Embakasi Ranching Company Limited & 3 others (Environment and Land Appeal E200 of 2024) [2025] KEELC 4400 (KLR)", Case Analysis (2025). Appeal against the Judgment in Milimani MCELC No. E219 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4400/eng@2025-06-12

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