Ririani v Adan & another (Environment and Land Case Civil Suit 189 of 2019) [2025] KEELC 8108 (KLR)
The bottom line
#The Environment and Land Court halted the sale of a Nairobi property pending appeal, finding that selling to a third party would cause irreversible loss.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain the stay application
The court had jurisdiction to determine the stay application notwithstanding its earlier finding that it lacked jurisdiction to restrain the exercise of the statutory power of sale.
The earlier judgment held the court could not interrogate the 2nd Defendant's statutory power of sale, since that would require scrutiny of loan accounts and statutory notices. But the stay Motion is a distinct inquiry: it does not revisit the validity of the power of sale but asks whether the legal parameters for stay under Order 42 Rule 6 are met. That inquiry falls squarely within the court's jurisdiction, so the plea of want of jurisdiction fails.
Existence of orders capable of being stayed
Although the dismissal of the plaintiff's suit was a negative order incapable of being stayed, the declaratory order on the counterclaim was a positive order capable of being stayed.
Only positive orders may be stayed. The dismissal of the plaintiff's suit was negative and brought her claim to an end. However, the counterclaim partially succeeded, yielding a declaration that the charge was valid, legal and enforceable — a positive order affirming enforceable rights. The two outcomes cannot be divorced, so the argument that no subsisting orders exist for a stay was rejected.
Substantial loss
The plaintiff demonstrated substantial loss because sale of the property to a third party would permanently divest her ownership rights and render the appeal nugatory.
Ordinarily a chargor voluntarily assumes the risk of sale. This case is exceptional because the plaintiff is not indebted to the 2nd Defendant and disputes the very foundation of the charge as fraudulent. Sale would vest the property in a third party, creating an irreversible situation that could not be undone even if the appeal succeeded. That risk constitutes substantial loss.
Delay and security
The application was filed without unreasonable delay (fourteen days after judgment), and the court declined to order any security.
Judgment was delivered on 20th March 2025, the Notice of Appeal lodged the same day, and the Motion filed about fourteen days later; the 2nd Respondent conceded timeliness. On security, what suffices is for the court to determine; considering the circumstances and that the 2nd Defendant had itself charged the suit property, the court declined to impose security for due performance of the decree.
Legal principles established
#- Jurisdiction is everything; a court without jurisdiction cannot take any step.
- A stay of execution under Order 42 Rule 6 presupposes a positive order; a negative order such as dismissal of a suit cannot be stayed, but a positive declaratory order on a counterclaim can.
- Substantial loss must be something beyond the ordinary consequence of losing a case; execution alone does not amount to substantial loss.
- Arguability of an appeal is not a condition precedent for stay of execution under Order 42 Rule 6.
Court orders
#- 1.An order of stay of execution of the Judgment and Decree delivered on the 20th day of March, 2025 pending the hearing and determination of the Appeal at the Court of Appeal
- 2.Each party to cater for its own costs
- Jurisdiction invoked
- Articles 159(1), (2), (3) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Section 10 of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ririani v Adan & another (Environment and Land Case Civil Suit 189 of 2019) [2025] KEELC 8108 (KLR)", Case Analysis (2025). Not stated in the excerpt (ELC suit arising from judgment of 20th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8108/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.