Salim & another v Shallo & 5 others (Environment and Land Case 17 of 2014) [2025] KEELC 6247 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Unreasonable delay in applying for stay of execution
Filing a stay application nearly 23 months after judgment, only after execution had commenced, constituted unreasonable delay disentitling the Applicants to a stay
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.
Substantial loss
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
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.
Security and balance of convenience
The balance of convenience did not favour a stay because granting one would disrupt concluded third-party transactions and prolong litigation
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.
Legal principles established
#- 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
#- 1.The application dated 13/2/2025 is dismissed with costs to the Plaintiffs
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.