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ELCAllowedApplication dated 19/2/2025 in Environment and Land Appeal from MC. ELC E050 of 2021 (originally HCCA No. E622 of 2024)· [2025] KEELC 5542 (KLR)

Omware t/a Molo Garage v Njeri & 2 others (Environment and Land Appeal E035 of 2025) [2025] KEELC 5542 (KLR)

Environment and Land Court
22 July 2025
JKJ. G. Kemei
2,795 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (J. G. Kemei J) determined the Appellant's application dated 19/2/2025 seeking a stay of proceedings in MC. ELC E050 of 2021 pending hearing of his appeal against the subordinate court's decision reinstating his previously dismissed suit over Title No. Dagoretti/Karandini/T.32. The Respondents opposed, arguing the appeal was transferred defectively from the High Court (HCCA No. E622 of 2024) without jurisdiction, was filed out of time contrary to Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, and that the application was an abuse of process aimed at delaying the trial. The court framed three issues: competency of the appeal, entitlement to stay, and costs. It held the memorandum of appeal was filed on 22/5/2024, within the 30-day statutory period, and that the High Court (Mrima J) had properly transferred the matter suo moto under Section 18 of the Civil Procedure Act, finding no fault on the part of the appellant. Applying the principles in William Odhiambo Ramogi and Global Tours & Travels, and Sections 6 and Order 42 Rule 6(1), the court found the appeal arguable - raising the applicant's right to be heard - and granted the stay to avoid conflicting decisions, capped at 360 days, failing which it lapses automatically. The application was allowed with no orders as to costs.

Key legal issues

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01

Whether there was a competent appeal before the ELC

Holding

Yes - the memorandum of appeal was filed within the statutory 30-day period under Section 79G and Section 16A, and the transfer from the High Court under Section 18 of the Civil Procedure Act cured the wrong forum

Reasoning

The ruling impugned was delivered on 23/4/2024 and the memorandum of appeal was filed on 22/5/2024, within 30 days. Although lodged in the High Court as HCCA No. E622 of 2024, the High Court, prompted by the appellant's counsel, transferred the matter suo moto to the ELC under Section 18 CPA. The court found no fault on the part of the appellant and rejected the contention that the appeal was defective or filed out of time.

p. 4
02

Whether stay of proceedings in the subordinate court should issue pending appeal

Holding

Yes - the appeal raised arguable issues touching on the right to be heard, and stay was warranted for orderly administration of justice

Reasoning

Applying Section 6 CPA, Order 42 Rule 6(1) CPR and the principles in Ramogi and Global Tours & Travels, the court found the memorandum of appeal raised a ground that the trial court failed to consider the applicant's evidence in reinstating the suit, touching on the right to be heard. The appeal was not slothful. Stay was granted to avoid conflicting decisions and ensure efficient use of judicial time, limited to 360 days.

p. 6

Legal principles established

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  • Whether to grant a stay of proceedings pending appeal is a matter of judicial discretion to be exercised in the interest of justice, weighing the need for expeditious disposal, the arguability of the appeal, judicial time and expeditiousness of the application
  • An appeal filed within 30 days but in a court without jurisdiction may be transferred to the competent court without being rendered defective

Court orders

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  1. 1.The application dated the 19/2/25 be and is hereby allowed
  2. 2.The proceedings in MC. ELC E050 of 2021 be and are hereby stayed pending the hearing and determination of the appeal or such other orders of the Court
  3. 3.The orders shall last for a period of 360 days within which the Applicant ought to have prosecuted his appeal to conclusion, in default the order shall lapse automatically
  4. 4.No orders as to costs
On appeal from
Chief Magistrate's Court (MC. ELC E050 of 2021)
MC. ELC E050 of 2021
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act (appellate jurisdiction over subordinate court), with Section 18 of the Civil Procedure Act governing the transfer from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omware t/a Molo Garage v Njeri & 2 others (Environment and Land Appeal E035 of 2025) [2025] KEELC 5542 (KLR)", Case Analysis (2025). Application dated 19/2/2025 in Environment and Land Appeal from MC. ELC E050 of 2021 (originally HCCA No. E622 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5542/eng@2025-07-22

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