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ELCPartially AllowedNyeri MCELC No.111 of 2018 (appeal)· [2025] KEELC 7443 (KLR)

Macharia & another v Njiru & 6 others (Environment and Land Appeal E003 of 2024) [2025] KEELC 7443 (KLR)

Environment and Land Court
28 October 2025
2,640 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nyeri court paused only the land-transfer orders against two landowners pending appeal, confirming that courts cannot stay dismissals, declarations, or injunctions.

What this practically means

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Executive summary

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The Appellants/Applicants moved the Environment and Land Court at Nyeri by Notice of Motion dated 14th March 2024 under Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the judgment and orders of the trial court in Nyeri MCELC No.111 of 2018 (Mr A.G. Kibiru), which dismissed their suit with costs and allowed the Respondents' counterclaim, declaring the defendants entitled to approximately 2.025 Ha for Macharia Primary and Nursery School, permanently restraining the Appellants from the land, and directing excision and transfer of the excised portion to the school. The Applicants argued they would suffer substantial loss, having been permanently restrained from land they purchased, and risked the property being alienated to the Ministry of Education, rendering the appeal nugatory. The Respondents, through the Chairman of the school's Board of Directors, countered that donors had already built new classrooms, that a stay would halt pupils' learning, and that no substantial loss or nugatory appeal was demonstrated. The court analysed each trial court order separately. It held that the dismissal of the main suit was a negative order incapable of execution; the declaratory orders were formal statements of rights, not coercive orders; and no substantial loss would flow from the injunction since the disputed portion has hosted the school since 1982. However, the excision, transfer and costs orders (numbers 4, 5, 6 and 7) would have far-reaching consequences if executed before appeal. The court granted a partial stay of those orders pending the appeal, directed filing of the Record of Appeal within 21 days failing which the stay lapses, and ordered costs to abide the appeal.

Key legal issues

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01

Whether substantial loss would result absent a stay

Holding

Partial substantial loss established: execution of orders 4, 5 and 6 (excision, transfer, subdivision costs) would prejudice the Appellants and possibly render the appeal nugatory, but no loss flows from the dismissal, the declarations or the injunction

Reasoning

The court analysed each order of the trial court separately. It found the dismissal to be a negative order incapable of execution, the declarations non-coercive, and no substantial loss from the injunction since the land hosts a school operating since 1982. However, orders requiring excision and transfer of land would have far-reaching consequences if executed before appeal, justifying partial stay.

p. 6
02

Whether the application was made without unreasonable delay

Holding

A three-month delay between judgment (13th December 2023) and application (14th March 2024) was not inordinate, being attributed to the legal process of drafting and filing the appeal

Reasoning

Counsel explained the lapse as time consumed in drafting and filing the appeal; the court did not fault this explanation and proceeded to consider the application on its merits, accepting the delay was not unreasonable.

p. 3
03

Whether security for due performance was required

Holding

The court did not compel security, instead conditioning the stay on the Appellant filing the Record of Appeal within 21 days

Reasoning

Rather than ordering security, the court tied the stay to expedition of the appeal, directing the Record of Appeal be filed within 21 days with automatic lapse of the stay in default, to oversee timely conclusion of the appeal.

p. 6

Legal principles established

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  • A negative order of dismissal is incapable of execution and cannot be stayed
  • Declaratory orders are not coercive/executable orders and a stay of execution does not lie in respect of them
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution

Court orders

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  1. 1.An order of stay of execution of orders number 4, 5, 6 and 7 of the judgment of the Trial court in Nyeri CMELC No. 111 of 2018, pending hearing and final determination of the appeal
  2. 2.The Appellant directed to file and serve the Record of Appeal within 21 days of the ruling, in default of which the stay orders automatically lapse
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (including rule 6(2)(b))
  • Civil Procedure ActSection 27
  • Constitution of Kenya2010 (rights to use and enjoy property)

Cases cited (8)

  • Mukuma vs. Abuoga
    (1988) KLR 645; [1988] KECA 107 (KLR)
  • Antoine Ndiaye vs. African Virtual University
    (2015) eKLR
  • James Wagalwa & Another vs Agnes Naliaka Cheseto
    (2012) eKLR; [2012] eKLR
  • Republic vs Kenya Revenue Authority ex parte Stanley Mombo Amuti
    (2018) eKLR
  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417; [1979] eKLR
  • Republic vs Rosemary Wairimu Munene (ex parte applicant) vs. Ihururu Dairy Farmers Co-operative Society Ltd
    (2014) eKLR
  • Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others
    SC Petition no.4 of 2012 (2014) eKLR
  • Kanwal Sarjlt Singh Dhiman vs Keshav vs Juvral Shah
    [2008] eKLR
On appeal from
Magistrates' Court at Nyeri (CMELC)
Nyeri MCELC No.111 of 2018
Jurisdiction invoked
Order 42 Rule 6 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, "Macharia & another v Njiru & 6 others (Environment and Land Appeal E003 of 2024) [2025] KEELC 7443 (KLR)", Case Analysis (2025). Nyeri MCELC No.111 of 2018 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7443/eng@2025-10-28

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