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ELCDismissedNotice of Motion dated 28th April 2025 (Bungoma ELC)· [2025] KEELC 5676 (KLR)

Munyasia v Makhanu & 3 others (Environment and Land Case E007 of 2022) [2025] KEELC 5676 (KLR)

Environment and Land Court
24 July 2025
ECE.C Cherono
1,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Once you file an appeal in Kenya's Court of Appeal, the trial court can no longer grant stay of execution—you must apply to the appellate court instead.

What this practically means

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Executive summary

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The Applicant, Pius Makhanu Munyasia, moved the Environment and Land Court at Bungoma by Notice of Motion dated 28th April 2025 under Order 42 Rule 6 of the Civil Procedure Rules seeking a stay of execution of the judgment and decree delivered on 3rd April 2025, pending an intended appeal to the Court of Appeal at Kisumu (C.A No. E088 of 2025). He argued he would suffer substantial loss, including eviction upon re-survey and restoration of beacons, that the application was filed without unreasonable delay, and that he was willing to offer security. The Respondent/Decree Holder opposed via grounds of opposition, contending the application was incompetent, that the court had become functus officio, and that it lacked jurisdiction since an appeal had been filed. The court agreed with the Respondent: once it delivered final judgment on 3rd April 2025 and the Applicant filed a Notice of Appeal which was registered in the Court of Appeal as C.A No. E088 of 2025, the stage moved to the appellate court and the trial court became functus officio, save for judicial review and applications under section 100 of the Civil Procedure Act. The court held it could not entertain an application that would amount to re-opening the suit and emphasized the duty of the trial court to enforce its decrees. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether this Court has jurisdiction to grant stay of execution pending appeal after the appeal has been lodged in the Court of Appeal

Holding

The court lacks jurisdiction; upon filing of the notice of appeal and registration in the Court of Appeal, the trial court became functus officio and the application was dismissed.

Reasoning

The court reasoned that after a court delivers final judgment, an aggrieved party's recourse is appeal. While a trial court may grant stay during the appeal period, once the notice of appeal is lodged and registered in the Court of Appeal, the stage moves to the appellate court, save for judicial review and applications under section 100 of the Civil Procedure Act. Entertaining the application would amount to re-opening the suit afresh.

p. 4

Legal principles established

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  • Once a trial court delivers final judgment and a notice of appeal is filed and registered in the appellate court, the trial court becomes functus officio and any application for stay lies in the appellate court.
  • It is the duty of the trial court to enforce its judgment as a decree cannot be issued in vain.

Court orders

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  1. 1.The Notice of Motion dated 28th April 2025 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure ActSections 1A & 1B; section 100

Cases cited (10)

  • Silverstein v Chesoni
    (2002) 1 KLR 867
  • Harun Gikongo & Another v Wachuka Kamau
    (2022) KLR
  • RWW v EKW
    (2019) eKLR
  • Wilson v Church (No.2)
    (1879) 12 ChD 454
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Clement Wakari Njoroge v Daniel Mwangi Wahome
    (2022) eKLR
  • Halal & Another v Thorntone & Turpin (1963) Ltd
    (1990) eKLR
  • Vishram Ravji Halai v Thornton & Turpin
    Civil Application No. 15 of 1990 (1990) KLR 365
  • Harun Gikonyo & Another v Martha Wachuka Kamau
    (2020) eKLR
  • Maikuma Wekesa Buchunju v Donald Wekesa Muyundo & 7 Others
    Bungoma ELC No. 143 of 2017 (UR)
Jurisdiction invoked
Order 42 Rule 6 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, "Munyasia v Makhanu & 3 others (Environment and Land Case E007 of 2022) [2025] KEELC 5676 (KLR)", Case Analysis (2025). Notice of Motion dated 28th April 2025 (Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5676/eng@2025-07-24

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