Ngita v Njagwa & 14 others (Environment and Land Appeal E008 of 2025) [2025] KEELC 5394 (KLR)
The bottom line
#A Kenyan court dismissed a stay-of-execution application because the applicant skipped the required step of asking the trial court first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Applicant should be granted stay of execution pending appeal
- 2.whether the application was properly filed in the appellate court without first moving the trial court
- 3.whether the application filed by a firm without a Notice of Change of Advocates was properly before the Court
Key legal issues
#Whether stay of execution can be granted directly by the appellate court without prior application to the trial court
No. Order 42 Rule 6(1) makes it obligatory for the applicant to first seek stay in the subordinate court; skipping that step is forum shopping and robs the appellate court of jurisdiction
The court gave Order 42 Rule 6(1) a plain, grammatical and textual reading. The filing of an appeal does not operate as a stay; the aggrieved party must first move the court appealed from. Whether that application is granted or refused, only then may the party apply to the appellate court to have the order set aside. Electing between the two forums is impermissible forum shopping. Authorities including Vipingo Ridge, Mwangi v Mokaya, Anyenda v Simidi and Pius Mbithi affirm this compulsory step.
Validity of the appeal itself and the authority of the firm filing the application
The appeal was filed well beyond 30 days with no order granting leave to appeal out of time, casting doubt on its validity; and the application was filed by KAN Advocates LLP with no Notice of Change of Advocates, making the applicant a stranger to the appeal
The judgment was delivered on 26th November 2024 (with an anomalous decree dated 14th November 2024) but the Memorandum of Appeal was filed on 13th March 2025 without leave. Additionally, the appeal was filed by Amadi and Associates Advocates while the application was filed by KAN Advocates LLP, with no Notice of Change of Advocates. Strangers cannot be permitted to run other people's affairs, a defect not curable under Article 159(2)(d).
Legal principles established
#- An applicant for stay of execution pending appeal must first move the court appealed from before approaching the appellate court; the appellate court has no jurisdiction to entertain such an application unless the subordinate court has first pronounced itself on it
- An application filed by a law firm with no Notice of Change of Advocates on record is filed by a stranger to the appeal and cannot be cured by Article 159(2)(d) of the Constitution
Court orders
#- 1.The application dated 24th April 2025 is dismissed with costs to the Respondents
- 2.The matter to be mentioned on 28th October 2025 for parties to indicate to the Court what they shall have considered to do next
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (subordinate court)
- ELC E028 of 2022
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the subordinate court; application under Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment delivered on 26th November 2024 and decree issued on 14th November 2024 pending appeal
The Applicant never first moved the subordinate court for stay as required by Order 42 Rule 6(1); the application was premature, incompetent and bad in law, and was filed by a firm without a Notice of Change of Advocates, making it a stranger to the appeal
Costs
Costs of the application awarded to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore doubtful as to the validity of the appeal thereof but that is matter to be considered on the deciding on the merits of the appeal during its substantive hearing or other step if a party moves the court to address it.
These many reasons make this Court find that the application is one for dismissal with costs to the Respondents.
Forum shopping must never be encouraged by both the law and the courts.
The Superior court does not assume jurisdiction unless the party appealing to it has moved the subordinate court first for a stay of execution or proceedings.
Issues in the judgment
#The judgment states the judgment in ELC E028 of 2022 was delivered on 26th November 2024 but also refers to it having been delivered on 14th November 2024, an internal inconsistency acknowledged on the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngita v Njagwa & 14 others (Environment and Land Appeal E008 of 2025) [2025] KEELC 5394 (KLR)", Case Analysis (2025). Migori ELCA No. E008/2025 (Application dated 24th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5394/eng@2025-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.