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ELCPartially AllowedELC E 009 of 2023 (Appeal) - Notice of Motion dated 25th March 2025· [2025] KEELC 4812 (KLR)

Korir v Kangogo & another (Environment and Land Appeal E009 of 2025) [2025] KEELC 4812 (KLR)

Environment and Land Court
26 June 2025
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court paused execution of a land judgment, but only if the appellant deposits Kshs 200,000 as security and files his appeal on strict deadlines.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Ombwayo J) determines the Appellant's Notice of Motion dated 25th March 2025 seeking stay of execution of the judgment of the Chief Magistrate's Court at Molo in ELC E 009 of 2023 delivered on 14th February 2025. The Appellant, Robert Kipkoech Korir, argued that judgment was delivered in his absence without stay, that the 2nd Respondent might execute, subdivide and transfer the suit land to third parties, rendering the appeal nugatory. The 2nd Respondent opposed, contending she bought the land in 2006, registered it in the Appellant's name in trust, that the application was an abuse of process, overtaken by events since the land had been sold, and that the Appellant failed to meet the Order 42 Rule 6 thresholds of substantial loss, reasonable delay and security. Counsel for the 2nd Respondent also argued that no record of appeal had been filed, rendering the application incompetent. The court framed the sole issue as whether stay of execution pending appeal should issue. Applying Order 42 Rule 6 and the principles in RWW V EKW and Siegfried Busch v MCSK, it found the application filed within about one month and ten days of judgment was not inordinately delayed, but held that the Appellant failed to demonstrate substantial loss absent evidence that execution had commenced. Exercising its discretion, the court granted a conditional stay: deposit of Kshs. 200,000/= as security within 14 days, and filing of a record of appeal within 60 days with the appeal to be finalised within 180 days, failing which the stay would automatically lapse. Each party was ordered to bear its own costs.

Key legal issues

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01

Conditions for stay of execution under Order 42 Rule 6

Holding

The court found no inordinate delay and exercised its discretion to grant stay conditional on security and timely compilation of the record of appeal

Reasoning

The application filed about one month and ten days after judgment did not amount to inordinate delay. However, since there was no evidence execution had commenced, substantial loss was not demonstrated. Noting the Appellant had not offered security, the court nevertheless exercised its discretion to impose its own security conditions, balancing the appellant's right of appeal against the successful litigant's fruits of judgment.

p. 3
02

Substantial loss

Holding

Appellant failed to demonstrate substantial loss where no execution had commenced

Reasoning

The Appellant feared execution and sale to third parties, but the 2nd Respondent contended the land had already been sold. The court found no evidence that execution had commenced, so the substantial-loss threshold under Order 42 Rule 6(2) was not proved, though it still granted a conditional stay in the interest of preserving the appeal.

p. 3

Legal principles established

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  • The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, balanced against the successful litigant's right to enjoy the fruits of judgment
  • Grant of stay is discretionary and a court ought not make a practice of denying a successful litigant the fruits of judgment

Court orders

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  1. 1.Stay of execution of the judgment delivered on 14th February 2025 granted on conditions
  2. 2.The Appellant to deposit Kshs. 200,000/= as security for costs in a fixed joint interest-earning account in the names of both counsel within 14 days
  3. 3.The Appellant to compile, file and serve a record of appeal within 60 days and move the Court towards finalisation of the appeal within 180 days
  4. 4.Automatic lapse of the stay if either condition is not met within the fixed timelines
  5. 5.Each party to bear its own costs of the application
On appeal from
Chief Magistrate's Court at Molo
ELC E 009 of 2023
Jurisdiction invoked
Appellate jurisdiction over appeals from subordinate courts in environment and land matters; Order 42 Rule 6 of the Civil Procedure Rules

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, "Korir v Kangogo & another (Environment and Land Appeal E009 of 2025) [2025] KEELC 4812 (KLR)", Case Analysis (2025). ELC E 009 of 2023 (Appeal) - Notice of Motion dated 25th March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4812/eng@2025-06-26

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