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ELCDismissedKitale ELC Appeal (arising from MCELC/E159 of 2023); related appeal Kitale ELC Appeal No. E013 of 2025· [2025] KEELC 6842 (KLR)

Kenya National Highways Authority v Socio Dairy and Farm Produce Company Limited (Environment and Planning Appeal E002 of 2025) [2025] KEELC 6842 (KLR)

Environment and Land Court
8 October 2025
1,494 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (C.K. Nzili, J) determines an application dated 23/7/2025 in an appeal challenging a ruling of Hon. S.K. Mokua delivered on 17/6/2025 in MCELC/E159 of 2023. The underlying default judgment of 17/4/2025 awarded the respondent Kshs. 11,000,000 for trespass. The trial court's ruling granted a conditional stay requiring the applicant to pay half the decretal amount and deposit the balance in a joint interest-earning account. The applicant sought a further stay of that ruling, plus consolidation of this appeal with Kitale ELC Appeal No. E013 of 2025. The respondent opposed through a replying affidavit, notice of preliminary objection and grounds of opposition, contending that the appeal was fatally defective for having been filed without leave as required under Order 43 Rule 1(2) of the Civil Procedure Rules, since the impugned ruling concerned a stay under Order 42 Rule 6 from which an appeal lies only with leave; that the court lacked jurisdiction; that the application was delayed; and that the respondent could refund the decretal sum, holding 2 acres of land valued at Kshs. 11,000,000. The court applied the Mukisa Biscuit test for preliminary objections, held that leave to appeal such an order must be sought orally when the order is made or within 14 days, and found the memorandum of appeal, filed on 16/7/2025 without leave, 'dead on arrival'. Since only competent appeals can be consolidated, the consolidation prayer also failed. The application was dismissed with costs.

Key legal issues

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01

Competency of the appeal and application for want of leave

Holding

The appeal, being against a stay-of-execution ruling governed by Order 42 Rule 6, required leave under Order 43 Rule 1(2) which was neither sought nor obtained; the appeal is therefore incompetent and the application fails

Reasoning

The court reasoned that orders under Order 42 Rule 6 are not among those from which an appeal lies as of right under Section 75(1) of the Civil Procedure Act and Order 43 Rule 1(1). Leave must be sought orally at the time of the order or within 14 days. The memorandum of appeal dated 16/7/2025 was filed without leave and is therefore, in the court's words, dead on arrival.

p. 3
02

Consolidation of the two appeals

Holding

Consolidation cannot be ordered because only competent appeals may be consolidated, and this appeal is incompetent

Reasoning

Relying on the Supreme Court's test in the Law Society of Kenya case and the Nyati Security Guards criteria (common questions of law or fact, same transactions, desirability), the court accepted consolidation facilitates efficient disposal but held these criteria presuppose competent suits or appeals, which this is not.

p. 3
03

Preliminary objection test

Holding

The court applied the classic Mukisa Biscuit test: a preliminary objection must raise a pure point of law, argued on assumed pleaded facts, and cannot depend on ascertainment of facts or exercise of discretion

Reasoning

The court restated the two-step test from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd as elaborated in Oraro v Mbaja, framing the respondent's competency objection as a pure point of law going to the requirement of leave under Order 43 Rule 1(2).

p. 3

Legal principles established

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  • A preliminary objection is valid only if it raises a pure point of law argued on the assumption that all pleaded facts are correct, and cannot be raised where facts must be ascertained or discretion exercised
  • An appeal from an order under Order 42 Rule 6 (stay of execution) lies only with leave of the court under Order 43 Rule 1(2), obtainable orally when the order is made or within 14 days thereafter
  • Only competent suits or appeals can be consolidated

Court orders

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  1. 1.The application dated 23/7/2025 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 43 Rule 1(1)
  • Civil Procedure RulesOrder 43 Rule 1(2)
  • Civil Procedure RulesOrder 43 Rule 1
  • Civil Procedure ActSection 75(1)

Cases cited (5)

  • National Industrial Credit Bank Limited -vs- Aquinas Francis Wasike
    (2006) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd -vs West End Distributors Ltd
    [1969] EA 696
  • Oraro -vs- Mbaja
    [2005] 1KLR 141
  • Law Society of Kenya vs- Center for Human Rights & Democracy & 12 Others
    [2014] eKLR
  • Nyati Security Guards & Services Ltd -vs- Municipal Council of Mombasa
    [2000] eKLR
On appeal from
Magistrates' Court (ELC)
MCELC/E159 of 2023
Jurisdiction invoked
Appeal from subordinate court under Section 75(1) of the Civil Procedure Act read with Order 43 Rule 1 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, "Kenya National Highways Authority v Socio Dairy and Farm Produce Company Limited (Environment and Planning Appeal E002 of 2025) [2025] KEELC 6842 (KLR)", Case Analysis (2025). Kitale ELC Appeal (arising from MCELC/E159 of 2023); related appeal Kitale ELC Appeal No. E013 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6842/eng@2025-10-08

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