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ELCDismissedNot stated in the extract (application dated 4/7/2025 arising from judgment delivered 15/3/2025)· [2025] KEELC 7170 (KLR)

Lwangu v Ndote & 23 others (Environment and Land Case 79 of 2010) [2025] KEELC 7170 (KLR)

Environment and Land Court
22 October 2025
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (C.K. Nzili, J) on a notice of motion dated 4/7/2025 in which the applicant, Sophie Feis Lwangu, sought a stay of execution of the court's judgment and decree delivered on 15/3/2025, pending the hearing and determination of an intended appeal and the taxation of costs. She relied on grounds including permanent fixtures on the suit property likely to be wasted or destroyed, the respondents' continued fragmentation, partitioning and selling of the land, the respondents' possession of the disputed portions, willingness to furnish security, and timeliness. The respondents, led by the 1st defendant Benson Wafula Ndote, opposed the application, contending that it was filed nearly four months after judgment, that no properly filed appeal existed because the notice of appeal was not endorsed or dated and no memorandum of appeal was lodged within 60 days under the Court of Appeal Rules, that no substantial loss or prejudice was demonstrated, and that no security was offered. The court isolated the four familiar conditions for stay: sufficient cause, substantial loss, security, and absence of unreasonable delay. It found inordinate and unexplained delay, prompted by the filing of a bill of costs; no proof of substantial loss, the applicant never having lived on or developed the land; no basis for holding the appeal would be rendered nugatory, any change being reversible by damages; no security offered; and no pending appeal established, the applicant having failed to file a supplementary affidavit. The application was dismissed with costs.

Key legal issues

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01

Existence of a pending appeal

Holding

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

Reasoning

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.

p. 3
02

Unreasonable delay

Holding

The application filed almost four months after judgment was inordinately delayed with no explanation

Reasoning

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.

p. 3
03

Substantial loss

Holding

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

Reasoning

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.

p. 3
04

Appeal rendered nugatory

Holding

No substantial reason shown; any change to the substratum could be reversed or compensated by damages

Reasoning

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.

p. 3
05

Security

Holding

None was offered, which the court treated as fatal to the application

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 4/7/2025 is dismissed with costs
  2. 2.Orders accordingly

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Court of Appeal RulesRules 82 and 84

Cases cited (10)

  • Vishram Ravji Halai -vs- Thornton & Turpin
    [1990] KLR 365
  • Samvir Trustee Ltd -vs- Guardian Bank Ltd
    Nairobi Milimani HCC No. 797 of 1997
  • Kenya Shell Ltd -vs- Kibiru
    [1986] KLR 410
  • James Wangalwa & Another -vs- Agnes Naliaka Cheseto
    [2012] eKLR
  • National Industrial Credit Bank Limited -vs- Aguinas Francis Wasike
    Civil Appl. No. 238 of 2005
  • Patrick Kibunja Kithithi -vs- Victor Magira Marete
    Nyeri Civil Appeal (Appl. No. 48 of 2014)
  • Lillian Jelimo -vs- Enock Pipkoech Kemboi & Another
    Kitale ELC No. 78 of 2008
  • Jackson Ngachulot -vs- Mudangi Sondang
    Kitale ELC No. 26 of 2023
  • Henry Bukomoka & Others -vs- Statewide Insurance Co. Ltd
    Uganda Court of Appeal 12 of 1999
  • Focin Motorcycle Co. Ltd -vs- Ann Wambui Wangui & Another
    [2018] eKLR
Jurisdiction invoked
Order 42 Rule 6(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, "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.