Lwangu v Ndote & 23 others (Environment and Land Case 79 of 2010) [2025] KEELC 7170 (KLR)
The bottom line
#The Environment and Land Court in Kitale refused to pause execution of a land judgment because the applicant delayed nearly four months, proved no loss, offered no security, and showed no pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Existence of a pending appeal
No pending appeal was demonstrated; the applicant did not rebut allegations of non-compliance with Rules 82 and 84 of the Court of Appeal Rules and failed to file a supplementary affidavit
The respondents deposed that the notice of appeal had died a natural death, was not endorsed by the Deputy Registrar, and no memorandum of appeal was filed within 60 days. The applicant was given an opportunity to substantiate the existence of a pending appeal via a supplementary affidavit but never filed it. The court accepted the respondents' submissions that a stay cannot issue on the basis of no pending appeal.
Unreasonable delay
The application filed almost four months after judgment was inordinately delayed with no explanation
Judgment was delivered on 15/3/2025 and the application dated 4/7/2025. Though no maximum or minimum delay is prescribed and each case depends on its circumstances, the applicant offered no explanation. The court inferred that the filing of the bill of costs for taxation was what prompted the application, waking the applicant from her slumber.
Substantial loss
Not demonstrated; the applicant alleged extensive developments but produced no material evidence, and the court found she never lived on or developed the suit land
Beyond mere allegation, no material was placed before the court to assess the nature, particulars or value of the alleged fixtures or developments. The respondents pointed out that the judgment had found the applicant neither lived on nor developed the suit premises, and execution per se does not constitute substantial loss.
Appeal rendered nugatory
No substantial reason shown; any change to the substratum could be reversed or compensated by damages
There was nothing to show that the substratum of the appeal would irreversibly change. The respondents had submitted that the land would always be there and any changes to title could be reversed if the appeal succeeded, an argument the court accepted.
Security
None was offered, which the court treated as fatal to the application
Offering security is a mark of good faith showing the application is not merely meant to deny the respondents the fruits of their judgment. The applicant offered no security, and the respondents noted she had not demonstrated sufficient cause to deny them enjoyment of the decree.
Legal principles established
#- Stay of execution pending appeal requires sufficient cause, substantiation of substantial loss, furnishing of security, and filing of the application without unreasonable delay
- Execution per se does not amount to substantial loss; the applicant must show factors negating or interfering with the substratum of the appeal
- An applicant must offer security as a mark of good faith; it is not for the court to suggest the type of security
Court orders
#- 1.The application dated 4/7/2025 is dismissed with costs
- 2.Orders accordingly
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lwangu v Ndote & 23 others (Environment and Land Case 79 of 2010) [2025] KEELC 7170 (KLR)", Case Analysis (2025). Not stated in the extract (application dated 4/7/2025 arising from judgment delivered 15/3/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7170/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.