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ELCAllowedNotice of Motion dated 8/9/2023 (ELC)· [2025] KEELC 5313 (KLR)

Mbulo & another v Nyamwaya (Environment and Land Miscellaneous Case 2 of 2023) [2025] KEELC 5313 (KLR)

Environment and Land Court
7 April 2025
MKMohammed N. Kullow
755 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped an eviction pending appeal because removing a family living on the land since the 1970s would cause them substantial loss.

What this practically means

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Executive summary

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By a Notice of Motion dated 8 September 2023, the Defendant/Applicant sought an order of stay of execution of the judgment dated 2 December 2015 and the consequential decree, together with an order concerning Land Reference No. Suna East Area 'b' Kwa/326, pending the hearing and determination of an intended appeal. The Applicant contended that the family had lived on the land since the 1970s, that the judgment in which eviction orders were made against them relied on non-existent documents and was delivered without jurisdiction or regard to occupation, and that eviction would render the appeal nugatory, leave them homeless and deny them basic dignity. The Respondent opposed the application by a Replying Affidavit dated 16 October 2023, asserting that the matter was heard on merit, judgment was entered in his favour, and the application was bad in law since the proper remedy was an appeal now overtaken by events. The court, deciding that the sole issue was whether the Applicant would suffer loss, applied Order 42 Rule 6(2) of the Civil Procedure Rules 2010. Finding that the Applicant, together with grandparents, parents and siblings, lived on the suit land and would suffer substantial loss if evicted, the court allowed the application, stayed execution of the 2015 judgment and consequential orders pending the appeal, ordered conservation of the suit parcel, and directed that costs be in the cause. Judgment was delivered virtually at Nairobi on 7 April 2025 by Mohammed N. Kullow, J.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss to justify stay of execution pending appeal

Holding

The court found that eviction of the Applicant and his family, who have lived on the suit land since the 1970s, would amount to substantial loss and granted the stay.

Reasoning

The court applied Order 42 Rule 6(2) of the Civil Procedure Rules, which requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security for due performance be given. Relying on the contention that the Applicant, his grandparents, parents and siblings live on the land and would be rendered homeless and deprived of dignity, the court concluded substantial loss would occur and allowed the motion, conserving the suit parcel pending the appeal.

p. 2

Legal principles established

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  • Before an application for stay of execution succeeds, the applicant must demonstrate that he is likely to suffer substantial loss unless the orders sought are granted.

Court orders

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  1. 1.Pending the hearing and determination of the Appeal, an order of stay of execution is issued and further execution of the Judgment dated 2/12/2015 and the consequential decree and/or Orders is stayed
  2. 2.An order conserving Land Parcel No. Suna East Area 'b' Kwa/326 pending the hearing and determination of the intended Appeal
  3. 3.Costs of the Application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6(2)
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules 2010

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, "Mbulo & another v Nyamwaya (Environment and Land Miscellaneous Case 2 of 2023) [2025] KEELC 5313 (KLR)", Case Analysis (2025). Notice of Motion dated 8/9/2023 (ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5313/eng@2025-04-07

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