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ELCDismissed· [2025] KEELC 8059 (KLR)

Kitulu & 8 others v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8059 (KLR)

Environment and Land Court
20 November 2025
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Makueni (E. O. Obaga, J) determined a notice of motion dated 20th August 2024 by which the Defendant/Applicant sought a stay of execution of the ruling and decree issued on 22nd May 2024, pending an appeal to the Court of Appeal. The impugned ruling had allowed the Plaintiffs/Respondents' application dated 26th April 2023 for amendment of the judgment of 19th March 2018, substituting LR No. 1757/6 with LR No. 1757/19. The Applicant argued that he had an arguable appeal and that execution would render it nugatory and cause him substantial loss. The Respondents opposed, contending the application was misconceived and brought too late without explanation, that the Applicant had not shown any loss, had not paid costs exceeding four million shillings previously ordered, and had further subdivided the suit properties. Both parties filed written submissions; the Respondents relied on Vishram Ravji Halai v Thornton & Turpin (1963) Ltd and Macharia t/a Macharia & Co. Advocates v East African Standard on the conditions for stay. Framing a single issue - whether the Applicant met the threshold for stay pending appeal - the court found the application filed almost three months after the ruling with no explanation for the delay, and that no substantial loss had been demonstrated. The Respondents had occupied their portions for decades based on adverse possession, and any titles improperly issued on amended decrees would simply revert to the original position, so the appeal would not be rendered nugatory. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Applicant met the threshold for grant of stay pending appeal under Order 42 Rule 6

Holding

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.

Reasoning

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.

p. 3
02

Whether security for costs ought to be ordered

Holding

Security was not considered because the Applicant had failed to demonstrate substantial loss, the foundational condition.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 20th August 2024 seeking stay of execution pending appeal is dismissed
  2. 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

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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, "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.