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ELCDismissedNot stated in the extract (ELC Mombasa)· [2025] KEELC 4540 (KLR)

Ethics & Anti-Corruption Commission v Mwidani & 3 others (Environment & Land Case 203 of 2007) [2025] KEELC 4540 (KLR)

Environment and Land Court
18 June 2025
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa land court refused to pause eviction because the defendant never proved what it would actually lose if execution went ahead.

What this practically means

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Executive summary

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The 4th defendant, which had purchased the suit property in 2000, taken possession, charged it to Imperial Bank and constructed a warehouse complex, moved the court by notice of motion dated 11th December 2024 seeking stay of execution of the judgment delivered on 23rd October 2024, which had ordered it to vacate within ninety days, pending an intended appeal to the Court of Appeal. It relied on Order 42 Rule 6 of the Civil Procedure Rules, alleging substantial loss through eviction and demolition of developments it valued at Kshs.40,000,000 after over 24 years of occupation. The plaintiff opposed, contending the threshold under Order 42 Rule 6 was unmet, no execution steps had been taken, and the defendant had not shown it could not be compensated. The court framed two issues: whether the stay threshold was met, and costs. It found the application timely, the plaintiff having conceded it was timeously made. However, the defendant failed the substantial loss test: it gave no particulars of the loss, its defence had valued the development at Kshs.6,000,000 against the Kshs.40,000,000 now claimed without explanation, and it failed to show the plaintiff, a constitutional commission acting for the Government, could not compensate it. On security, although none was offered in the application, the court held the defendant's expressed preparedness in submissions to tender security was not fatal in itself, but the question did not arise given failure on substantial loss. The application was dismissed with costs, costs following the event under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

Application filed timeously

Reasoning

Judgment was delivered on 23rd October 2024, the notice of appeal was filed the same day, a letter seeking certified proceedings followed in November, and the motion dated and filed 11th December 2024. Although filed over one and a half months after judgment, the plaintiff conceded in submissions that the application was timeously made, so the delay test was satisfied.

p. 3
02

Whether the 4th defendant established substantial loss

Holding

Failed - loss not particularised and plaintiff able to compensate

Reasoning

The defendant alleged loss of property occupied for over 24 years and demolition of developments valued at Kshs.40,000,000, but its defence had valued the development at Kshs.6,000,000 with no explanation for the discrepancy. No particulars of the loss were given, and the plaintiff, being a constitutional commission acting for the Government of Kenya, was not shown to be unable to compensate the defendant if the appeal succeeded.

p. 4
03

Whether the security test was satisfied

Holding

Security offer in submissions accepted as adequate in principle, but moot given failure on substantial loss

Reasoning

No security was offered in the notice of motion or supporting affidavit, but the defendant expressed preparedness in submissions to tender security within thirty days if prescribed. The court held this was sufficient in principle, as the court determines security only after an applicant passes the substantial loss and delay tests. Having failed the substantial loss test, the security question did not arise.

p. 5
04

Costs

Holding

Costs follow the event

Reasoning

Under section 27 of the Civil Procedure Act, costs follow the event unless the court otherwise directs on good cause. No good cause was shown, so costs were awarded to the plaintiff.

p. 5

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss, file without unreasonable delay, and the security question only arises once substantial loss and timeous filing are established
  • Failure to offer security in the application itself is not fatal if the applicant expresses preparedness to tender security

Court orders

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  1. 1.The application is without merit.
  2. 2.The application is dismissed with costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (sub-rules (1) and (2))
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 27

Cases cited (8)

  • Matata & Another versus Rono & Another
    [2024] eKLR
  • Tropical Commondities Suppliers Ltd & Others versus International Credit Ltd [In Liquidation]
    [2004] 2 EA 331
  • James Wangalwa & Another versus Agnes Naliaka Cheseto
    [2012] eKLR
  • Antoine Ndiaye versus African Virtual University
    [2015] eKLR
  • RWW versus EKW
    [2019] eKLR
  • Gathua versus Nyarogo & 2 Others
    [2024] eKLR
  • Silverstein versus Chesoini
    [2002] 1 KLR 867
  • Mukuma versus Abuoga
    [1988] KLR 645
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Ethics & Anti-Corruption Commission v Mwidani & 3 others (Environment & Land Case 203 of 2007) [2025] KEELC 4540 (KLR)", Case Analysis (2025). Not stated in the extract (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4540/eng@2025-06-18

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