Sampa Investments Limited v Summer Properties Company Limited & 2 others; County Land Registrar Kwale & another (Third party) (Environment and Land Case 115 of 2021) [2025] KEELC 7255 (KLR)
The bottom line
#The Kwale Environment and Land Court paused collection of a Kshs. 79 million judgment, but only if the defendants meet strict conditions within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Substantial loss was evident given the colossal decretal sum of Kshs. 79,000,000 which the applicants would pay and likely never recover if the appeal succeeds
The court applied the Mukuma v Abuoga and James Wangalwa definitions: mere execution does not amount to substantial loss; the applicant must show execution would irreparably negate the essential core of its position in the appeal. Given the decretal sum of Kshs. 79,000,000, payment would render any successful appeal nugatory, satisfying substantial loss.
Unreasonable delay
The application filed on 19th May 2025 following the judgment of 27th February 2025 was filed timeously and expeditiously
The court assessed the roughly two-month interval between judgment and filing and concluded the application was made without inordinate delay, satisfying the second limb of Order 42 Rule 6(2).
Security for due performance of the decree
The court directed a cash deposit into an interest-earning escrow joint account within 60 days, or alternatively deemed the four Certificates of Title held by the Plaintiff/Respondent as security
Applying the Keary Development v Tarmac Construction principles as adopted in Ocean View Beach Hotel, the court noted the unopposed application and the applicants' willingness to comply. Exercising discretion, it fashioned security in the form of a cash deposit or, alternatively, the titles to the suit properties.
Costs of the application
Each party to bear its own costs despite the applicants' success, because the application was unopposed
While costs ordinarily follow the event under Section 27(1) of the Civil Procedure Act, the court invoked its discretion and held that, as the application was not opposed, it was just, fair and reasonable that each party bears its own costs.
Legal principles established
#- The purpose of a stay of execution pending appeal is to preserve the substratum of the appeal so it is not rendered nugatory
- An applicant under Order 42 Rule 6(2) must establish substantial loss, absence of unreasonable delay, and furnish security
- Costs are a discretionary award that follow the event under Section 27(1) of the Civil Procedure Act, but a court may order each party to bear its own costs where the application was unopposed
Court orders
#- 1.That the Notice of Motion application dated 19th May 2025 be and is hereby found to have merit but subject to fulfilment of the pre-conditions stipulated
- 2.That a stay of execution of the Judgment delivered on 27th February 2025 by Hon. Justice A. E. Dena, the decree and/or any consequential orders therefrom, is issued pending the hearing and determination of the intended appeal
- 3.That the Defendants/Applicants are directed to deposit Kenya Shillings Five Million Five Hundred Thousand into an interest-earning escrow joint bank account in the joint names of both firms of Advocates within 60 days, OR the four original Certificates of Title to Kwale/Galu Kinondo/1636, 1637, 1638 and 1639 held by the Plaintiff/Respondent be deemed as security for granting stay of execution
- 4.That in default of fulfilling any of these conditions the Notice of Motion application shall stand dismissed automatically by effluxion of time
- 5.That each party to bear its own costs
- Jurisdiction invoked
- Order 42 Rule 6, Order 22 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sampa Investments Limited v Summer Properties Company Limited & 2 others; County Land Registrar Kwale & another (Third party) (Environment and Land Case 115 of 2021) [2025] KEELC 7255 (KLR)", Case Analysis (2025). Notice of Motion dated 19th May 2025 (in the suit arising from Kwale/Galu Kinondo/1636-1639). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7255/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.