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ELCDismissedNot stated in judgment (Notice of Motion dated 13/2/2025)· [2025] KEELC 6247 (KLR)

Salim & another v Shallo & 5 others (Environment and Land Case 17 of 2014) [2025] KEELC 6247 (KLR)

Environment and Land Court
24 September 2025
2,871 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to halt execution of a land judgment because the losing party waited 23 months before applying for a stay.

What this practically means

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Executive summary

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The Applicants, defendants in a land suit decided against them on 24/4/2023 by the Environment and Land Court at Malindi, moved the court by Notice of Motion dated 13/2/2025 seeking a stay of execution of that judgment pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. They filed a Notice of Appeal on 27/4/2023 but blamed former advocates and difficulties obtaining a certified decree for the delay. They alleged the Plaintiffs had entered, fenced, subdivided and partly sold the suit property, rendering the appeal nugatory. The Plaintiffs opposed, contending the application was filed after inordinate delay of about 23 months; that the Applicants had refused to approve a draft decree served on 26/4/2023; that part of the land had already been transferred to third parties to fund medical treatment; and that the joint decree was not severable. Mwangi Njoroge J framed a single issue: whether the Applicants met the Order 42 Rule 6 threshold. Applying Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, the court held the delay was inordinate and unexplained; the refusal to approve the draft decree amounted to contumelious neglect; execution alone does not constitute substantial loss; and the balance of convenience favoured the Plaintiffs, part of the property having already been transferred. The application was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Unreasonable delay in applying for stay of execution

Holding

Filing a stay application nearly 23 months after judgment, only after execution had commenced, constituted unreasonable delay disentitling the Applicants to a stay

Reasoning

The Applicants filed a Notice of Appeal on 27/4/2023 but did not move for stay until the Plaintiffs subdivided and partially transferred the suit land. Blaming a former advocate's unavailability was insufficient absent evidence of diligent follow-up. The refusal to approve a draft decree served on 26/4/2023 was contumelious neglect that could not be used as a shield.

p. 6
02

Substantial loss

Holding

The Applicants failed to demonstrate substantial loss; part of the property had already been transferred and the remaining portion was still available, so the appeal would not be rendered nugatory

Reasoning

Relying on James Wangalwa v Agnes Naliaka Cheseto, the court held that mere execution or risk of execution does not constitute substantial loss. The Applicants did not establish an irreversible situation; the Plaintiffs explained execution was to fund medical treatment and one unsold parcel remained, so reversal of the appeal would not be wholly impossible.

p. 6
03

Security and balance of convenience

Holding

The balance of convenience did not favour a stay because granting one would disrupt concluded third-party transactions and prolong litigation

Reasoning

The Plaintiffs had subdivided and transferred part of the suit property to third parties. A stay at that stage would disturb concluded transactions and introduce uncertainty, contrary to the principle that there must be an end to litigation.

p. 6

Legal principles established

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  • A party who obtains a judgment is entitled to enjoy its fruits unless validly stayed by the Court
  • Execution in itself does not amount to substantial loss; a party must demonstrate an irreversible situation undermining the essence of the appeal
  • An applicant blaming an advocate's inaction must show prompt and diligent follow-up; equity does not aid the indolent

Court orders

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  1. 1.The application dated 13/2/2025 is dismissed with costs to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Evidence Actsections 2, 64, 68(3)(c), 79
  • Appellate Jurisdiction Actsection 7
  • Constitution of KenyaArticle 50
  • Civil Procedure RulesOrder 22 Rule 11

Cases cited (7)

  • Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • RWW v EKW
    [2019] eKLR
  • Butt v Rent Restriction Tribunal
    [1979]
  • Kerugoya HCC Civil Appeal No. 305 of 2013
  • Rubo Kimngetich Arap Cheruiyot v Peter Kiprop Rotich
    [2006] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Muthu Narayan Reddy Versus Balakrishna Reddy and Others
    1896 ILR 19, MAD, 306
Jurisdiction invoked
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, "Salim & another v Shallo & 5 others (Environment and Land Case 17 of 2014) [2025] KEELC 6247 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 13/2/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6247/eng@2025-09-24

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