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ELCDismissedELC Case No. 270 of 2019 (application dated 14th March 2025)· [2025] KEELC 7588 (KLR)

Nderu (Suing as administrator of the Estate of Gacheru Kanungu - Deceased) v Babu (Environment and Land Case 270 of 2019) [2025] KEELC 7588 (KLR)

Environment and Land Court
31 October 2025
TMT. Murigi
1,054 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's second attempt to halt eviction, ruling you cannot re-apply for a stay after ignoring its conditions.

What this practically means

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Executive summary

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By a Notice of Motion dated 14th March 2025, brought under Sections 1A, 2A, 3B and 3A of the Civil Procedure Code, Rule 5(2)(b) of the Court of Appeal Rules and Articles 50 and 159 of the Constitution, the Applicant sought a stay of execution of the judgment and decree of 24th May 2023 in ELC Case No. 270 of 2019, and a conservatory order preserving the status quo, both pending delivery of the ruling in his Court of Appeal Civil Application No. E702 of 2024. The Respondent opposed the application through a replying affidavit dated 6th August 2025, contending it was res judicata and an abuse of court process. She explained that on 14th November 2023 the court had granted a conditional stay of 30 days on condition the Applicant furnish security of Kshs 250,000; the Applicant failed to comply, the stay lapsed, and an eviction order was issued on 16th December 2024. The court framed a single issue: whether the application was res judicata. Relying on Section 7 of the Civil Procedure Act, Black's Law Dictionary, and the tests in IEBC v Maina Kiai and Uhuru Highway Development Ltd v Central Bank of Kenya, the court found it undisputed that the Applicant had been granted a conditional stay, that it lapsed for non-compliance, and that he had a pending application in the Court of Appeal seeking the same relief. The application was therefore held to be an abuse of process, devoid of merit, and dismissed with costs to the Respondent.

Key legal issues

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Whether the application is res judicata / an abuse of the court process

Holding

The application is res judicata and an abuse of process; it is dismissed with costs

Reasoning

The court applied the elements of res judicata from Section 7 of the Civil Procedure Act and the authorities. It found undisputed that a conditional stay had earlier been granted on 14th November 2023 and lapsed when the Applicant failed to furnish security of Kshs 250,000, and that an eviction order issued on 16th December 2024. The Applicant conceded a similar stay application remained pending before the Court of Appeal, rendering the present application duplicative and an abuse of process.

p. 3

Legal principles established

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  • An applicant who has a pending application in a higher court seeking the same orders cannot maintain a parallel application, as such duplication amounts to an abuse of the court process
  • A conditional stay of execution that lapses upon non-compliance with its conditions cannot found a fresh application for the same relief

Court orders

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  1. 1.The Notice of Motion dated 14th March 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure CodeSections 1A, 2A, 3B, 3A
  • Civil Procedure ActSection 7
  • Court of Appeal RulesRule 5(2)(b)
  • Constitution of KenyaArticles 50, 159

Cases cited (2)

  • Independent Electoral & Boundaries Commission Vs Maina Kiai & 5 Others
    [2017] eKLR
  • Uhuru Highway Development Ltd v Central Bank of Kenya
    [1999] eKLR
Jurisdiction invoked
Sections 1A, 2A, 3B and 3A of the Civil Procedure Code; Articles 50 and 159 of the Constitution of Kenya

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, "Nderu (Suing as administrator of the Estate of Gacheru Kanungu - Deceased) v Babu (Environment and Land Case 270 of 2019) [2025] KEELC 7588 (KLR)", Case Analysis (2025). ELC Case No. 270 of 2019 (application dated 14th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7588/eng@2025-10-31

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