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ELCDismissedRuiru ELC Suit No. E112 of 2021 (appeal against Ruling dated 11th May 2023)· [2025] KEELC 5773 (KLR)

Makori v Njoroge & another (Environment and Land Appeal E054 of 2023) [2025] KEELC 5773 (KLR)

Environment and Land Court
31 July 2025
JOJ. M Onyango
3,076 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to halt a land judgment's execution because the appellant hadn't actually filed the appeal he wanted to postpone execution for.

What this practically means

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Executive summary

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The Appellant was the Defendant in Ruiru ELC Suit No. E112 of 2021, in which the Respondents, as Plaintiffs, obtained judgment on 27th October 2022 declaring them legal owners of land parcel Ruiru/Ruiru East Block 2/30924 and ordering him to vacate within 30 days. The trial court granted a 30-day stay. The Appellant later filed a Notice of Motion dated 23rd February 2023 seeking stay of execution pending an intended appeal, including leave for an advocate of Kituo Cha Sheria to represent him post-judgment. By a ruling of 11th May 2023 the trial court allowed leave for representation but dismissed the stay application, finding no sufficient and reasonable cause, no proof of a filed appeal, delay in bringing the application, and failure to offer security. The Appellant appealed on four grounds, arguing substantial loss from eviction, lack of inordinate delay, and willingness to furnish security; he acted in person. The Respondents contended the appeal was overtaken by events since the decree had been executed and they had taken possession and developed the property, and that no competent appeal existed. The ELC at Thika, per J. M Onyango J, restated the principles for interfering with discretionary orders (Shah v Mbogo; Butt v Rent Restriction Tribunal) and the Order 42 Rule 6 conditions. The court agreed with the trial magistrate: the Notice of Appeal and draft memorandum annexed to the application related to ELC 162 of 2019, in which the Respondents were not parties, and the Appellant only sought extension of time in July 2023, confirming no appeal was on file in February 2023. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Whether the trial court erred in dismissing the application for stay of execution

Holding

The trial court did not err; the Appellant failed to satisfy the conditions under Order 42 Rule 6, and in any event there was no appeal pending against the judgment for which stay could issue.

Reasoning

The court found the Notice of Appeal and draft memorandum annexed to the application of 23rd February 2023 related to a different case (ELC 162 of 2019) to which the Respondents were not parties. The Appellant only later sought extension of time to file an appeal, confirming that no appeal was on file when stay was sought. Substantial loss, delay, and security were also not established.

p. 6

Legal principles established

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  • An appellate court will not ordinarily interfere with the exercise of discretion of the trial court unless misdirection or failure to consider relevant matters is demonstrated
  • No stay of execution pending appeal can be granted where no appeal exists

Court orders

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  1. 1.The appeal is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6(2)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B and 3A
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159

Cases cited (9)

  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Port Florence Community Health Care vs Crown Health Care Ltd
    [2022] eKLR
  • Cooperative Bank of Kenya Ltd vs Banking Insurance & Finance Union
    [2015] eKLR
  • Stanley Kangethe Kinyanjui vs Tony Keter & 5 Others
    [2013] eKLR
  • Sicpa Securities Sol Sa vs Okiya Omtatah Okoiti & 2 Others
    [2018] eKLR
  • Jane Cherotich Tum vs Rose Chepkurgat Rono
    (E& L Appeal No. E012 of 2024)
  • Shah v Mbogo
    [1968] EA
  • Antoine Ndiaye vs African Virtual University
    [2015] eKLR
  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Environment and Land Court (Ruiru)
Ruiru ELC Suit No. E112 of 2021
Jurisdiction invoked
Appellate jurisdiction over the subordinate court's ruling on stay of execution under Order 42 Rule 6 of the 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, "Makori v Njoroge & another (Environment and Land Appeal E054 of 2023) [2025] KEELC 5773 (KLR)", Case Analysis (2025). Ruiru ELC Suit No. E112 of 2021 (appeal against Ruling dated 11th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5773/eng@2025-07-31

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