Nthiga v Stower (Environment and Land Case 933 of 2002) [2025] KEELC 8094 (KLR)
The bottom line
#The Environment and Land Court dismissed a defendant's bid to pause execution of a 2013 judgment because he delayed over a year, showed no real loss, and offered no security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendant has made out a case for stay of proceedings or execution pending tracing of the original file or intended appeal
- 2.Whether to alternatively issue stay of execution orders pending the hearing and determination of the intended appeal against the ruling of 18th July 2024
- 3.Whether the orders sought are merited in the circumstances of this case
Key legal issues
#Stay of proceedings pending tracing of the original file
Refused; the file has been reconstructed and only execution remains, so there is nothing capable of being stayed
The court found taxation was concluded by a ruling of 7th February 2024 which remains unchallenged, leaving only execution. Courts do not issue orders devoid of practical effect, and a stay pending tracing of a file that cannot be traced is an oxymoron. Appellate mechanisms such as Rule 31 of the Court of Appeal Rules can cure deficiencies in the record.
Stay of execution pending the intended appeal
Refused; the statutory preconditions of Order 42 Rule 6(2) were not met
The application was filed over fourteen months after the ruling and the letter requesting proceedings was misaddressed to the wrong division. The Defendant adduced no empirical evidence of substantial loss beyond the ordinary consequences of execution, nor proof of the plaintiff's impecuniosity, and offered no security.
Effect of without prejudice instalment payments
Such payments do not waive the right of appeal but do not insulate the Defendant from execution
The court accepted the privilege attaching to without prejudice communications, adopting the principle that such overtures cannot be used as admissions. However, it held that this protection does not suspend a valid decree, and the balance of justice favoured the successful plaintiff's enjoyment of the fruits of judgment.
Legal principles established
#- Reconstruction of lost court files is an administrative process undertaken under the supervision of the Deputy Registrar
- Stay of execution pending appeal requires establishment of sufficient cause, demonstration of substantial loss and provision of security
- Without prejudice payments do not extinguish a litigant's right of appeal but equally do not suspend a valid decree
Court orders
#- 1.The Notice of Motion dated 17th September 2025 is dismissed
- 2.Costs of the application to be borne by the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 10, 27, 48 and 159 of the Constitution, Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Stay of further proceedings pending tracing of the original court file and proceedings
The file was already reconstructed and only execution remains; a stay pending tracing of an untraceable file is futile
Stay of execution pending the intended appeal
Statutory preconditions of timeous application, substantial loss and security were not satisfied
Costs
Costs of the application to be borne by the Defendant, as costs follow the event
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This court therefore finds that the Notice of Motion dated 17th September 2025 is devoid of merit and is hereby dismissed. As costs follow the event, the costs of this application shall be borne by the Defendant.
an order for stay pending of proceedings pending the tracing of the file, which file cannot be traced, is in itself an oxymoron. The prayer cannot be granted.
the Defendant has not satisfied the statutory preconditions for the equitable remedy of stay of execution sought.
The Court agrees that payments made without prejudice do not extinguish or compromise a litigant’s statutory right of appeal.
the balance of justice tilts decisively against the Defendant.
Issues in the judgment
#The same authority is cited with inconsistent citations: 'Millicent Wambui vs Nairobi Botanica Gardening Ltd [2012] eKLR' in submissions and 'Millcent Wambui vs Nairobi Botanica Gardening Limited [2013] KEELRC 557 (KLR)' in the court's holding
The ruling sought to be appealed was delivered on 18th July 2024, yet the court records judgment in the matter having been entered on 5th September 2013; the judgment's own case number is not disclosed in the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nthiga v Stower (Environment and Land Case 933 of 2002) [2025] KEELC 8094 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8094/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.