Kitulu & 8 others v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8059 (KLR)
The bottom line
#The Environment and Land Court at Makueni refused to pause execution of a land decree because the losing party waited three months and showed no real loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for grant of stay pending appeal under Order 42 Rule 6
The application was dismissed: the Applicant failed to demonstrate substantial loss, filed the application nearly three months after the ruling without explanation, and the appeal would not be rendered nugatory.
The court found the impugned ruling was delivered on 22nd May 2024 and the application was made on 20th August 2024, almost three months later, with no explanation for the delay. On substantial loss, the Respondents had occupied their portions for decades based on adverse possession, and even if titles issued pursuant to the amended decree were later found improper, they would simply revert to the original position, so the appeal could not be rendered nugatory.
Whether security for costs ought to be ordered
Security was not considered because the Applicant had failed to demonstrate substantial loss, the foundational condition.
The court reasoned that security for costs is normally considered only where the Applicant has demonstrated substantial loss. Having failed on that limb, the applicant could not benefit from an order for security, and the application as a whole lacked merit and was dismissed with costs to the Respondents.
Legal principles established
#- The High Court's jurisdiction to grant stay pending appeal under Order 42 Rule 6 is fettered by conditions: substantial loss, sufficient cause, absence of undue delay, and security.
- A mere assertion that substantial loss will result or that the appeal will be rendered nugatory is insufficient; particulars of the loss must be given and the court must be satisfied the loss will really ensue.
Court orders
#- 1.The application dated 20th August 2024 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitulu & 8 others v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8059 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8059/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.