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ELCDismissedMiscellaneous Application dated 5th March 2025 (arising from Bungoma CMCC E163 of 2024 / CM-ELC No. E163 of 2024)· [2025] KEELC 4552 (KLR)

Makokha v Faulu Microfinance Bank & another (Environment and Land Miscellaneous Application E006 of 2025) [2025] KEELC 4552 (KLR)

Environment and Land Court
12 June 2025
2,218 words in judgment
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The bottom line

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A Bungoma court refused to stop the auction of a borrower's land because she filed her application late, filed no appeal, and offered no security.

What this practically means

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Executive summary

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The Applicant, Dorine Nekesa Makokha, moved the Environment and Land Court at Bungoma by Notice of Motion dated 5th March 2025 seeking injunctions restraining Faulu Microfinance Bank and J.K Wanderi Auctioneers from auctioning her home on parcel East Bukusu/North Sang'alo/5855, a stay of proceedings in Bungoma CMCC E163 of 2024, and enlargement of time to appeal against a ruling of Hon. Gichimu CM delivered 14 January 2025 dismissing her earlier stay/injunction application. She argued the Respondents failed to obtain a valuation report before exercising the statutory power of sale, contrary to section 97 of the Land Act and the Auctioneers Act, and that she had substantially repaid a Kshs. 600,000 loan leaving a balance of Kshs. 200,000. The 1st Respondent opposed, contending the ruling sought to be stayed was a negative order incapable of being stayed, that no appeal had been filed, and that the Applicant had not satisfied the Order 42 Rule 6 conditions. The court identified four cumulative conditions: arguable appeal, absence of undue delay, substantial loss and security. It held that no appeal had been filed so arguability could not be assessed; the one-and-a-half-month delay was unexplained since settlement negotiations were initiated solely by the Applicant; no substantial loss was established; and no security undertaking was given. Applying James Wangalwa v Cheseto on substantial loss, the court dismissed the application with costs to the Respondents.

Key legal issues

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01

Arguability of intended appeal

Holding

Not satisfied because no appeal had been filed

Reasoning

The application was brought as a miscellaneous application seeking stay of a ruling dismissing an injunction application. No appeal had been filed. The court held it cannot assess the arguability of an appeal yet to be filed, so the first ground failed.

p. 4
02

Undue delay

Holding

Delay of one and a half months was unreasonable

Reasoning

The ruling was delivered on 14/01/2025 and the application filed 05/03/2025. Negotiation letters were initiated solely by the Applicant with no corresponding intention by the Respondents to settle, so the delay lacked sufficient explanation.

p. 4
03

Substantial loss

Holding

Not established

Reasoning

Relying on James Wangalwa & Another v Agnes Naliaka Cheseto, the court held that since no appeal was filed upon which the application was anchored, no substantial loss to be prevented was demonstrated.

p. 5
04

Security

Holding

Not satisfied

Reasoning

Neither the supporting nor supplementary affidavit contained an undertaking by the Applicant to give security as the court may order for the due performance of the decree or order ultimately binding on her.

p. 5

Legal principles established

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  • The four conditions for stay of execution pending appeal must be met simultaneously
  • A court cannot determine the arguability of an appeal that has not yet been filed
  • Execution in itself does not amount to substantial loss under Order 42 Rule 6

Court orders

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  1. 1.The Notice of Motion application dated 5th March 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Environment and Land Court ActSection 16A(2)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Auctioneers Actunspecified
  • Land ActSection 97

Cases cited (1)

  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
On appeal from
Chief Magistrate's Court, Bungoma
Bungoma CMCC E163 of 2024
Jurisdiction invoked
Section 16A(2) of the Environment and Land Court Act and Section 79G of the Civil Procedure Act (application under Order 42 Rule 6 CPR)

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, "Makokha v Faulu Microfinance Bank & another (Environment and Land Miscellaneous Application E006 of 2025) [2025] KEELC 4552 (KLR)", Case Analysis (2025). Miscellaneous Application dated 5th March 2025 (arising from Bungoma CMCC E163 of 2024 / CM-ELC No. E163 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4552/eng@2025-06-12

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