DCK Women Group (Through its Registered Officials Margaret Nyokabi Muchiri and Nancy Wangari Githitu) v Muchuna & 2 others (Environment and Land Appeal E016 of 2025) [2025] KEELC 8495 (KLR)
The bottom line
#A Kenyan land appeal group kept occupation of disputed Gilgil plots pending appeal, but must deposit Kshs 500,000 security and file its appeal within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Competence of an affidavit sworn by an advocate on contentious facts
The Replying Affidavit sworn by the 1st Respondent's counsel offended Order 19 Rule 3(1) and was fatally defective and struck out, leaving the application undefended
Order 19 Rule 3(1) confines affidavits to facts within the deponent's own knowledge, though interlocutory affidavits may contain information and belief with sources stated. Counsel deponed to contested facts of ownership and occupation, descending into the arena of the dispute. The court agreed with the Supreme Court's observation in Odinga v Ruto that counsel are not permitted to swear affidavits on contentious matters. The affidavit was incompetent and struck out.
Whether stay of execution pending appeal could issue
The dismissal of the Applicant's suit was a negative order incapable of being stayed, but preservatory/status quo orders could issue to preserve the substratum of the appeal
Following Mwalimu v Halal, though the court cannot stay a negative order, it has inherent power to grant orders maintaining the status quo to preserve the substratum of the appeal. Given the Applicants' alleged occupation and the need to opt for the lower risk of injustice, substantial loss was proved and status quo orders were warranted pending the appeal.
Compliance with the three conditions under Order 42 Rule 6(2)
Substantial loss was shown; the application was filed about 20 days after judgment without undue delay; and security of Kshs. 500,000/= was ordered despite the decree being a dismissal with costs
Judgment was delivered on 27th August 2025 and the application filed on 16th September 2025, hence no undue delay. Although the decree was a dismissal rather than a monetary award, the dismissal carried costs, attaching a monetary aspect; security under Order 42 Rule 6(2)(b) guarantees due performance of the decree and is not punitive, so the court retained discretion to order security.
Legal principles established
#- Advocates should not depone to contentious matters of fact in proceedings where they represent a party; such affidavits are fatally defective
- A negative order (dismissal of suit) is incapable of execution and cannot be stayed, but the court may grant preservatory/status quo orders to preserve the substratum of the appeal
Court orders
#- 1.The status quo pertaining on the ground as of the date of the Ruling in respect of occupation in Land Parcels No. Gilgil/Gilgil Block 1/314 and Gilgil/Gilgil Block 1/315 be maintained pending the hearing and determination of the Applicants' intended Appeal
- 2.The Appellants/Applicants to deposit Kshs. 500,000/= in court as security for due performance of the decree within 30 days from the date of the Ruling
- 3.The Appellants/Applicants to compile, file and serve a record of appeal upon the Respondent within 30 days from the date thereof
- 4.In the event of default of any of the conditions, the preservative order granted shall lapse without further reference to the court
- 5.The costs of the application to abide the outcome of the Appeal
- On appeal from
- Naivasha Chief Magistrate's Court
- Land Case No. E062 of 2021
- Jurisdiction invoked
- Order 42 and Order 51 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (appellate/interlocutory jurisdiction over appeal from magistrates' court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DCK Women Group (Through its Registered Officials Margaret Nyokabi Muchiri and Nancy Wangari Githitu) v Muchuna & 2 others (Environment and Land Appeal E016 of 2025) [2025] KEELC 8495 (KLR)", Case Analysis (2025). Notice of Motion dated 16th September 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8495/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.