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ELCDismissedMSA ELC No. 116 of 2015 (as consolidated)· [2025] KEELC 7729 (KLR)

Kivure & 7 others (Suing on their behalf and on behalf of 4201 members of Kishamba B Group Ranch) v Mwakina and 2 others (Sued as defunct Chairman, Secretary and Treasurer respectively of the Executive Committee of Kishamba B Group Ranch) & 4 others; County Government of Taita Taveta & 35 others (Interested Parties) (Environment and Land Case 4 of 2024) (Environment and Land) [2025] KEELC 7729 (KLR)

Environment and Land Court
10 November 2025
EWE. K. Wabwoto
941 words in judgment
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The bottom line

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The Environment and Land Court in Malindi refused to pause its judgment pending appeal because the applicant showed no evidence that execution had actually started.

What this practically means

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Executive summary

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This was a ruling on an interlocutory application by Benson Mlambo Mwakina seeking a stay of execution of the court's judgment delivered on 25th September 2025 in MSA ELC No. 116 of 2015 (as consolidated), pending an intended appeal to the Court of Appeal. The Applicant contended he was aggrieved by the judgment, that the court failed to consider his suit as consolidated, and that the judgment directed various actions to be completed within 90 days, so a stay was needed to preserve the substratum of the appeal. He further averred that the County Government of Taita Taveta had written to him demanding compliance. The application was opposed by the Plaintiffs, Anthony Kishagha Mwasi, and the 21st to 34th Interested Parties, who argued there was no evidence of execution underway, no arguable appeal, that the Applicant lacked authority or consent from members of Kishamba B Group Ranch, and that the application pursued personal interests. Applying Order 42 rule 6 of the Civil Procedure Rules, the court identified the three elements of substantial loss, absence of unreasonable delay and security. It found no evidence of any commencement of execution of the judgment and held the Applicant had failed to demonstrate substantial loss; it is not enough to allege substantial loss without substantiating it. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss to justify stay of execution pending appeal

Holding

The Applicant failed to demonstrate substantial loss because there was no evidence of any commencement of execution of the judgment.

Reasoning

The court had directed various actions to be completed within 90 days of the judgment of 25th September 2025. On considering the affidavits and annexures, no evidence confirmed commencement of execution. Citing James Wangalwa v Agnes Naliaka Cheseto, the court held substantial loss is what is to be prevented, and it must be substantiated, not merely alleged. None was shown, so the stay could not issue.

p. 3
02

The balancing of interests in stay applications

Holding

Stay pending appeal preserves the subject matter to avoid a paper judgment, but a successful litigant is entitled to the fruits of judgment, and both interests must be balanced.

Reasoning

Beyond the three Order 42 rule 6(2) elements, the court noted the purpose of stay is preservation of the subject matter of litigation so a successful appellant does not end up with only a paper judgment. However, the respondent as successful litigant is entitled to benefit from the judgment, and the interests of both parties must be balanced as stated in Reliance Bank v Norlake Investments Ltd.

p. 3

Legal principles established

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  • An applicant for stay of execution must demonstrate the three elements under Order 42 rule 6(2): substantial loss, absence of unreasonable delay, and security for due performance of the decree.
  • It is not enough to allege substantial loss without substantiating it; the status of the execution process must be shown.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed.
  2. 2.Each party to bear own costs of the application.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1)
  • Civil Procedure RulesOrder 42 rule 6(2)
  • Community Land Act

Cases cited (2)

  • Reliance Bank vs Norlake Investments Ltd
    (2002) 1 EA 227
  • James Wangalwa vs Agnes Naliaka Cheseto
    (2012) eKLR
Jurisdiction invoked
Order 42 rule 6(1) and 6(2) 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, "Kivure & 7 others (Suing on their behalf and on behalf of 4201 members of Kishamba B Group Ranch) v Mwakina and 2 others (Sued as defunct Chairman, Secretary and Treasurer respectively of the Executive Committee of Kishamba B Group Ranch) & 4 others; County Government of Taita Taveta & 35 others (Interested Parties) (Environment and Land Case 4 of 2024)  (Environment and Land) [2025] KEELC 7729 (KLR)", Case Analysis (2025). MSA ELC No. 116 of 2015 (as consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7729/eng@2025-11-10

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