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ELCDismissedNot stated in the extract

Waithaka (Suing as the Personal Representative of the Estate of Martin Francis Thuku Waithaka - Deceased) v Ouko & 3 others (Environment and Land Case Civil Suit E148 of 2021) [2025] KEELC 6060 (KLR)

Environment and Land Court
17 September 2025
2,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling arises from a Notice of Motion dated 10th March 2025 filed by the 4th Defendant seeking a stay of execution of the judgment and decree of 12th February 2025, by which the court entered judgment for the Plaintiff, issued a permanent injunction restraining the Defendants from interfering with her occupation of the suit land, and directed the 1st to 3rd Defendants to issue her with title upon payment of Kshs.400,000/-. In the alternative, the 4th Defendant sought an order of status quo pending his intended appeal to the Court of Appeal, on which he had filed a Notice of Appeal. He argued that his appeal raised arguable grounds, that execution would irreparably prejudice him given his occupation of over three decades, partial development of a matrimonial home and rental investment, and offered security. The Plaintiff opposed, contending that no threshold for stay had been met, that the matrimonial home was not on the suit property per the Site Visit Report, and that the 4th Defendant was approbating and reprobating by claiming both purchase and adverse possession. The court identified a single issue: whether to grant stay or, alternatively, status quo. Applying Order 42 Rule 6(2) and the authorities, the court found that beyond the Notice of Appeal, the 4th Defendant had neither lodged a substantive appeal nor shown its cause number; the application was also filed after delay. Stay was therefore premature and unmerited. The alternative status quo relief was likewise refused since Order 42 envisages such orders only where an appeal has been lodged. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should grant a stay of execution pending lodging and determination of the intended Appeal by the 4th Defendant
  2. 2.Whether in the alternative the Court should grant an order of status quo/injunction pending appeal

Key legal issues

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01

Whether stay of execution pending appeal was merited

Holding

Refused; the applicant had not lodged a substantive appeal and the application was premature and delayed

Reasoning

Order 42 Rule 6(2) requires substantial loss, application without unreasonable delay, and security for due performance. Beyond a Notice of Appeal, the 4th Defendant demonstrated neither a filed appeal nor the Court of Appeal cause number. The application was also filed after delay, so stay pending an intended appeal would be sought in futility and the threshold was not met.

p. 4
02

Whether an injunction or status quo order pending appeal should issue in the alternative

Holding

Refused; such orders are contingent on an appeal being on file and none existed

Reasoning

Adopting Patricia Njeri & 3 Others v National Museum of Kenya, the court noted injunctions pending appeal are discretionary and guided by principles including whether the appeal is arguable and whether refusal renders it nugatory. Since no appeal had been lodged, the alternative relief could not stand and the threshold was not met.

p. 5

Legal principles established

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  • An application for stay of execution pending an intended appeal is premature where no substantive appeal has been lodged
  • An injunction or status quo order pending appeal presupposes that an appeal has been lodged

Court orders

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  1. 1.The 4th Defendant's Notice of Motion application dated 10th March 2025 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Order 42 Rules 6(2) and 6 of the Civil Procedure Rules, 2010 (stay of execution and injunction pending appeal)

Relief refused

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Stay of execution of the judgment and decree of 12th February 2025 pending the intended appeal

The 4th Defendant has not lodged a substantive appeal, and the application is premature and made after delay

p. 4

Alternative order of status quo/injunction pending appeal

Order 42 envisages such orders where an appeal has been lodged; no appeal exists

p. 5

Costs

Application dismissed with costs to the Plaintiff

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that the 4th Defendant’s Notice of Motion application dated the 10th March, 2025 unmerited and will dismiss it with costs
Disposition – dismissal of stay application
since the 4th Defendant is yet to lodge an Appeal in the Court of Appeal, the instant application for stay of execution pending Appeal is premature
p. 4Prematurity of stay pending intended appeal
Order 42 of the Civil Procedure Rules envisages it can be issued in instances where an Appeal has been lodged
p. 4Injunction/status quo pending appeal requires a lodged appeal

Issues in the judgment

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minor

Internal inconsistency in the judgment: title payment period stated as 'fourteen (45) days'

minor

Internal inconsistency: court recites the injunction relates to LR No. 3589/6 while the application refers to L.R. No. 3589/53

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, "Waithaka (Suing as the Personal Representative of the Estate of Martin Francis Thuku Waithaka - Deceased) v Ouko & 3 others (Environment and Land Case Civil Suit E148 of 2021) [2025] KEELC 6060 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6060/eng@2025-09-17

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