Musyimi (Sued in his own Capacity and also as the Administrator/Personal Representative of the Estate of Muoti Musyimi Ndolo (Deceased)) & another v Kaumbulu (Environment and Land Appeal E040 of 2023) [2026] KEELC 176 (KLR)
The bottom line
#The Environment and Land Court in Machakos refused to halt execution of a land judgment because the losing party had subdivided and transferred the disputed property while the case was still in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules
The court declined to exercise its discretion in favour of the appellants because they had abused the court process by subdividing and transferring the suit property during the pendency of the lower court suit
The court set out the Order 42 Rule 6 conditions and the overriding objective under Sections 1A and 1B and the inherent power under Section 3A of the Civil Procedure Act. It found that although the elements of the stay jurisdiction were the frame, the conduct of the appellants — subdividing Kangundo/Muisuni/2027 into parcels 3788 and 3789 while the suit was pending — disentitled them from the equitable discretion. Granting stay would let them enjoy the fruits of circumventing the court process.
Whether the appellants were in contempt of the lower court's injunctive orders
The court could not establish contempt because the respondent did not tender subsequent orders showing the outcome of the inter partes hearing of the injunction application
The lower court had granted a temporary injunction on 12/04/2021 restraining dealings with Kangundo/Muisuni/2027 pending hearing of the application. However, the record did not show whether the injunction was extended pending determination of the suit. The court therefore declined to make a finding of contempt, though it still found the subdivision during pendency to be an abuse of process and a breach of lis pendens.
Whether the subdivision of the suit property during pendency of the suit breached lis pendens and constituted abuse of court process
Yes; the subdivision and transfers during the pendency of the lower court suit constituted abuse of process and breach of lis pendens
Relying on Naftali Ruthi Kinyua v Patrick Thuita Gachure & another and the dictum in Bellamy v Sabine, the court held that lis pendens gives the court jurisdictional control over property while an action is pending. The appellants subdivided the mother parcel into Kangundo/Muisuni/3788 and 3789, registered in the names of the 1st appellant and the 2nd appellant jointly with Joyce Dorothy Auma Kinyolo, intending to defeat the respondent's claim, which the court condemned as an attempt to 'steal a match'.
Legal principles established
#- An applicant for a stay of execution under Order 42 Rule 6 must demonstrate that the application is brought without undue delay, that substantial loss may result unless stay is ordered, and must furnish such security as the court orders for the due performance of the decree
- A party who subdivides and alienates suit property while litigation over it is pending abuses the court process and breaches the doctrine of lis pendens, and may be denied discretionary relief on that account
- Costs follow the event
Court orders
#- 1.The notice of motion dated 1/07/2025 is dismissed
- 2.The respondent is awarded the costs of the motion
- On appeal from
- Lower court (magistrates' court, Machakos)
- Not stated
- Jurisdiction invoked
- Section 19 of the Environment and Land Court Act 2011 and Order 42 Rule 6 of the Civil Procedure Rules 2010; Section 3A of the Civil Procedure Act (inherent power)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyimi (Sued in his own Capacity and also as the Administrator/Personal Representative of the Estate of Muoti Musyimi Ndolo (Deceased)) & another v Kaumbulu (Environment and Land Appeal E040 of 2023) [2026] KEELC 176 (KLR)", Case Analysis (2026). Not stated in the judgment (ruling on notice of motion dated 1/07/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/176/eng@2026-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.