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ELCAllowedNotice of Motion dated 11th February 2025 (ELC Appeal from Makueni CM ELC Misc No. E015 of 2024)· [2025] KEELC 6620 (KLR)

Muthoka & 2 others v Waita (Environment and Land Appeal E023 of 2024) [2025] KEELC 6620 (KLR)

Environment and Land Court
2 October 2025
EOE. O. Obaga
1,485 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused evictions from family land, confirming that succession courts cannot decide who owns land.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Hon. E. O. Obaga, J) determines a Notice of Motion dated 11th February 2025 by the Appellants/Applicants seeking stay of execution of a ruling of the Makueni Chief Magistrate's Court delivered on 3rd December 2024, together with all consequential orders, pending appeal. The dispute arises from the estate of Waita Mwalyangu (deceased), who had two wives, one being Tete Waita Mwalyangu, married under the Kamba woman-to-woman marriage tradition. The Applicants contend the Respondent secretly conducted succession proceedings, distributed the deceased's properties, and obtained eviction orders against them without regard to Wanzuu Tete Waita and her children. The Respondent countered that the clan distributed the estate, that the Applicants were allocated Konza properties, and that the eviction orders were final, having been issued after all parties were heard. The sole issue was whether the Applicants met the Order 42 Rule 6 threshold for stay pending appeal. The court found the application filed without unreasonable delay given the 60-day vacation period; found substantial loss demonstrated by the Applicants' undisputed permanent structures on the suit properties, which would render the appeal nugatory; and noted that ownership of the land had yet to be determined, such questions lying within the ELC's jurisdiction rather than the succession court. The court allowed the application in terms of prayers 3 and 4, ordering stay of execution pending appeal, conditioned on the Applicants depositing security of Kshs. 100,000 in court within 30 days failing which the stay lapses automatically. Costs were to be in the cause. Ruling delivered on 2nd October 2025 via Microsoft Teams.

Key legal issues

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01

Whether the Applicants met the threshold for stay of execution pending appeal

Holding

Yes. The application was filed timeously, substantial loss was demonstrated by undisputed permanent structures on the suit properties, and security was ordered as a condition.

Reasoning

The eviction orders of 3rd December 2024 gave the Applicants 60 days to vacate, and the application filed on 11th February 2025 was therefore without unreasonable delay. On substantial loss, the Applicants reside on the suit properties with permanent houses, evidenced by photographs which were not disputed; eviction and demolition would render the appeal nugatory. Ownership, being unresolved, properly belongs to the ELC, so executing eviction on a confirmed grant before determination would cause substantial loss. Security of Kshs. 100,000 was imposed within 30 days, failing which the stay lapses automatically.

p. 3

Legal principles established

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  • A confirmed grant in succession proceedings does not determine ownership of land; issues of ownership fall within the jurisdiction of the Environment and Land Court.
  • The conditions for stay pending appeal under Order 42 Rule 6 are reasonable time, demonstration of substantial loss, and security.
  • Security for costs is only considered once substantial loss is established.

Court orders

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  1. 1.Stay of execution of the ruling of the trial court delivered on 3rd December 2024 in Makueni Chief Magistrate's Court ELC Miscellaneous No. E015 of 2024 and all consequential orders emanating therein, pending the hearing and determination of the appeal
  2. 2.Applicants to deposit security for costs of Kshs. 100,000 in court within 30 days, failing which the stay shall automatically lapse without further recourse to court
  3. 3.Costs of the application to be in the cause
On appeal from
Makueni Chief Magistrate's Court
ELC Miscellaneous No. E015 of 2024 – Alphonse Kyalo Waita v Silvernus Muendo Muthoka & 2 others
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Muthoka & 2 others v Waita (Environment and Land Appeal E023 of 2024) [2025] KEELC 6620 (KLR)", Case Analysis (2025). Notice of Motion dated 11th February 2025 (ELC Appeal from Makueni CM ELC Misc No. E015 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6620/eng@2025-10-02

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