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ELCPartially AllowedNotice of Motion dated 19th May 2025 (in the suit arising from Kwale/Galu Kinondo/1636-1639)· [2025] KEELC 7255 (KLR)

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)

Environment and Land Court
23 October 2025
3,105 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Environment and Land Court at Kwale (L.L Naikuni, J) delivered a ruling on a Notice of Motion dated 19th May 2025 brought by the 1st, 2nd and 3rd Defendants/Applicants under Order 42 Rule 6, Order 22 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act. The applicants sought a stay of execution of the judgment of Hon. Justice A. E. Dena delivered on 27th February 2025, by which they were ordered jointly and severally to compensate the plaintiff Kshs. 79,000,000 as the purchase price for Kwale/Galu Kinondo/1636-1639, plus Kshs. 500,000 exemplary damages for fraud, payable within 90 days. The applicants contended they had lodged an appeal and that the Court of Appeal's decision in Coastland Properties Limited v Vipinkumar Nathial Shah & 2 others (Civil Appeal No. E011 of 2020), which restored and validated their titles, rendered the judgment moot and unenforceable, and that execution would render the appeal nugatory. The application was unopposed and unsupported by submissions. The court framed three issues: merit, entitlement to relief and costs. Applying Order 42 Rule 6(2) and authorities including Consolidated Marine v Nampijja, RWW v EKW, Mukuma v Abuoga and James Wangalwa v Cheseto, the court found substantial loss evident given the colossal decretal sum, no unreasonable delay in filing, and ordered security in the form of a deposit into an interest-earning escrow joint account within 60 days or, alternatively, the four original titles be deemed security. Stay of execution pending the intended appeal was granted, subject to those conditions, failing which the application stands automatically dismissed. As the application was unopposed, each party was ordered to bear its own costs. Note: the judgment contains a material discrepancy between the words and figures for the deposit amount.

Key legal issues

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01

Substantial loss

Holding

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

Reasoning

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.

p. 5
02

Unreasonable delay

Holding

The application filed on 19th May 2025 following the judgment of 27th February 2025 was filed timeously and expeditiously

Reasoning

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).

p. 5
03

Security for due performance of the decree

Holding

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

Reasoning

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.

p. 6
04

Costs of the application

Holding

Each party to bear its own costs despite the applicants' success, because the application was unopposed

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.That in default of fulfilling any of these conditions the Notice of Motion application shall stand dismissed automatically by effluxion of time
  5. 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

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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, "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.