Jumaa & another (Suing as the Personal Representative of the Estate of Patrick Kwesha Dzombo (Deceased)) v Sanga & 2 others (Environment and Land Case Civil Suit 166 of 2014) [2025] KEELC 4982 (KLR)

Environment and Land Court

4 July 2025

JOJ.O. Olola

984 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

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The bottom line

A Kenyan land court paused part of a family land judgment, keeping everyone where they stood until an appeal is decided.

What this practically means

Executive summary

This is a ruling on a Notice of Motion dated 11th December 2024 in which Crispin Mwangolo Sanga, the 1st Defendant, sought stay of execution of the judgment delivered on 16th October 2024 and all consequential orders pending an intended appeal, having lodged a Notice of Appeal on 18th October 2024 and requested certified proceedings. He argued that the family of the late Sanga Dzombo Juma had been in active and uninterrupted possession of the suit property for over thirty years, that after judgment the Plaintiffs had invaded the property and commenced demolishing houses and cutting down trees and crops, and that he would suffer substantial loss the Plaintiffs could not indemnify. The 1st Plaintiff, Mathias Dzombo Jumaa, opposed, asserting the subject matter was family land from which all family members drew livelihood, that the Plaintiffs had never entered the Applicant's portions, and that no loss would be suffered. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and adopted the purposive approach in RWW v EKW (2019) eKLR. Noting that the judgment had directed the title deed to be recalled, rectified and registered in the names of the legal representatives of the parties' grandfather in trust for the 7 families on the land, and finding no orders entitling the Plaintiffs to invade the property or evict the Defendant and his siblings, the court held it fair that both sides maintain the positions existing at the date of judgment. It granted stay of execution of prayers 'c', 'd' and 'e' of the judgment pending the appeal, with costs of the application to abide the outcome of the Appeal.

Key legal issues

Whether substantial loss would result to the Applicant if stay was not granted

Holding

Substantial loss was established: following the judgment the Plaintiffs had allegedly invaded the suit property, demolished houses and cut down trees, and the judgment contained no orders entitling them to evict the Defendant and his siblings

Reasoning

The court examined the judgment of 16th October 2024 and found no orders permitting the Plaintiffs to invade the property or evict the Defendant. The pleadings showed all parties resided on different portions of land whose title was held by the 1st Defendant. The judgment had directed that the title deed be recalled and rectified and registered in the names of the legal representatives of the parties' grandfather in trust for the 7 families on the land. Maintaining the status quo pending appeal was therefore the fair course.

p. 3

The test for stay of execution pending appeal

Holding

The court applied Order 42 Rule 6(2) and the purposive approach in RWW v EKW: preserving the subject matter so the appeal is not rendered nugatory, while protecting the judgment-holder's fruits and avoiding uncompensable prejudice

Reasoning

The court reproduced Order 42 Rule 6(2) of the Civil Procedure Rules and adopted the statement in RWW v EKW (2019) eKLR that stay is discretionary and the court must balance the interests of the appellant against those of the respondent, ensuring no party suffers prejudice that cannot be compensated by costs. Applying that balance, the court concluded that maintaining the positions existing at judgment was fair pending appeal.

p. 3

Legal principles established

The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so that the appeal, if successful, is not rendered nugatory, while balancing the appellant's rights against the successful litigant's entitlement to the fruits of judgment
An order for stay of execution requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security for due performance has been given
Pending an appeal, both sides to a dispute may fairly be ordered to maintain the positions they occupied at the date of judgment

Court orders

1.Stay of execution of prayers 'c', 'd' and 'e' of the judgment delivered on 16th October, 2024 pending the hearing and determination of the Appeal
2.Costs of the application to abide the outcome of the Appeal

Authorities

Legislation

Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

RWW –vs- EKW
(2019) eKLR

Jurisdiction invoked: Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Jumaa & another (Suing as the Personal Representative of the Estate of Patrick Kwesha Dzombo (Deceased)) v Sanga & 2 others (Environment and Land Case Civil Suit 166 of 2014) [2025] KEELC 4982 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4982/eng@2025-07-04

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