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ELCDismissedELCA (appeal) — application dated 11th November 2024; related appeal ELCA E052 OF 2024· [2025] KEELC 8310 (KLR)
Muhavi v Shiunza (Environment and Land Appeal 064 of 2024) [2025] KEELC 8310 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court in Kakamega dismissed a bid to strike out an appeal and confirmed that stay of execution orders remain in force pending the outcome of a separate application.
What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) delivered on 26th November 2025 on a notice of motion dated 11th November 2024 filed by the respondent in an appeal from a subordinate court. The respondent sought striking out of the appeal and of the appellant's application dated 9th October 2024, and setting aside of stay of execution orders made on 11th October 2024 and extended on 29th October 2024. The respondent argued that the appeal was filed outside the 30-day statutory period without leave, that no leave to appeal out of time was granted or served, that stay orders issued on an application that did not seek stay, and that there was non-disclosure of material facts. The appellant explained that an earlier appeal, ELCA E052 of 2024, was withdrawn because the memorandum of appeal was inadvertently omitted during e-filing; she filed the present appeal on 9th October 2024 together with two distinct applications of even date — one for leave to appeal out of time and one for stay of execution. The court framed a single issue: whether the orders sought should issue. It held that the stay orders were properly made on the application seeking stay, that the leave application remained pending and undetermined, and that the respondent's application was premature and contrary to the overriding objective under sections 1A and 1B of the Civil Procedure Act and section 3 of the Environment and Land Court Act. The application dated 11th November 2024 was dismissed, the stay orders left in force, and each party ordered to bear its own costs owing to confusion created by the appellant's two same-dated applications. No appearances were made by either party at delivery.
Key legal issues
#01
Whether the appeal and stay orders should be struck out/set aside
Holding
Application dismissed; stay orders left in place pending determination of the stay application
Reasoning
The court found that two distinct applications dated 9th October 2024 were filed simultaneously — one for leave to appeal out of time, one for stay. The stay orders of 11th October 2024 issued on the correct application. The application for leave to appeal out of time was still pending, so validity of the appeal could not be determined, and the later application was premature and contrary to the overriding objective.
p. 2
Legal principles established
#- An appeal from a subordinate court must be filed within 30 days unless admitted out of time for good and sufficient cause
- Stay orders properly issued on an application seeking stay cannot be set aside on the ground that a different application did not seek stay
Court orders
#- 1.The orders of 11th October 2024 (extended 29th October 2024) granting stay of execution are not set aside and remain in force pending hearing and determination of the application for stay of execution dated 9th October 2024
- 2.The application dated 11th November 2024 is dismissed
- 3.Each party shall bear its own costs of the application
- On appeal from
- subordinate court (Environment and Land Court appeal from subordinate court)
- Jurisdiction invoked
- Sections 79G, 1A and 1B of the Civil Procedure Act; section 3 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muhavi v Shiunza (Environment and Land Appeal 064 of 2024) [2025] KEELC 8310 (KLR)", Case Analysis (2025). ELCA (appeal) — application dated 11th November 2024; related appeal ELCA E052 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8310/eng@2025-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.