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ELCPartially AllowedNotice of Motion dated 4th September 2025 (Appeal from MCELC No. E051 of 2025, Kwale)· [2026] KEELC 620 (KLR)

Nzumbi v Swazuri & another (Environment and Land Appeal E012 of 2025) [2026] KEELC 620 (KLR)

Environment and Land Court
4 February 2026
4,442 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kwale court paused the lower-court case over a Diani property on appeal, and ordered disputed rent to sit in a joint escrow account until ownership is decided.

What this practically means

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Executive summary

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The Appellant/Applicant, Kavunza Nzumbi, moved the Environment and Land Court at Kwale by Notice of Motion dated 4th September 2025 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010, seeking a stay of execution and/or further proceedings pursuant to the order of 1st September 2025 in MCELC No. E051 of 2025 (Prof. Mohamed Abdallah Swazuri v Kavunza Nzumbi and Kenya Power and Lighting Company), in which the lower court had granted a temporary injunction restraining him from interfering with the suit property, Kwale/Diani/823. The Applicant claimed to be the registered proprietor, that the 1st Respondent had paid nothing under a 2016 sale agreement for Kshs. 18.5 million, had unlawfully collected rent since 2016, and that the lower court lacked pecuniary jurisdiction over a property valued at over Kshs. 30 million, the agreement also containing an arbitration clause. The 1st Respondent countered that he had purchased the property, paid the purchase price and the bank charge, taken vacant possession since 2016, and obtained LCB consent and executed transfer documents; he urged that the application was premature. Framing three issues, the court found the four-day filing delay not inordinate, held that the appeal raised arguable issues including the lower court's jurisdiction and the dispute-resolution clause, and that proceeding below would render the appeal nugatory and waste judicial time. It directed that monthly rents be deposited into a joint interest-earning escrow account with audited accounts filed in court, allowed the motion wholly, granted 21 days for compilation of the Record of Appeal, fixed mention for 6th May 2026, and ordered that costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the threshold under Order 42 Rule 6 for stay of execution and/or proceedings pending appeal was met

Holding

The application satisfied the requirements of sufficient cause, substantial loss, absence of inordinate delay and the interests of justice; stay of execution and further proceedings was granted.

Reasoning

The court held that the dispute over ownership, transfer and collection of rent from the suit property was a substantial cause requiring determination on merit. The appeal raised pertinent issues including the jurisdiction of the lower court and the dispute-resolution clause of the sale agreement. Proceeding in the lower court would render the appeal an academic exercise and waste judicial time. The application was filed only four days after the ruling, which was not inordinate delay.

p. 8
02

Whether the application was filed without unreasonable delay

Holding

The four-day period between the ruling of 1st September 2025 and the filing of the application on 4th September 2025 was not inordinate.

Reasoning

The court compared the date of delivery of the impugned ruling with the date of filing of the memorandum of appeal and application and concluded the delay was minimal, satisfying the delay limb of Order 42 Rule 6.

03

Disposition of rent collected from the suit property pending determination

Holding

Since the court could not determine which party was entitled to rent, the rent was to be deposited into a joint interest-earning escrow account pending the outcome of the suit.

Reasoning

Both parties claimed entitlement to rent collection, an issue the court said could only be determined after the hearing. As an interim measure balancing the parties' interests, monthly rentals were to be deposited into a joint escrow account, with audited accounts maintained and filed in court.

p. 8
04

Costs of the application

Holding

Costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act, but the court directed that costs of the application abide the outcome of the appeal.

Reasoning

The court affirmed the well-established principle that costs follow the event and that the successful party is entitled to costs absent exceptional circumstances, but in its discretion deferred the award of costs until the appeal is determined.

p. 8

Legal principles established

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  • An arguable appeal need only raise a single bona fide point worthy of consideration and need not be one that must necessarily succeed
  • Stay of proceedings is a matter of judicial discretion exercised in the interest of justice, weighing the pros and cons of granting or refusing the order

Court orders

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  1. 1.Stay of execution and/or further proceedings pursuant to the order issued in MCELC No. E051 of 2025 on 1st September 2025 pending the hearing and determination of the appeal
  2. 2.Counsel for the Appellant and the 1st Respondent directed to open a joint Escrow bank interest earning account within 14 days solely for depositing monthly rental collections from the suit property
  3. 3.Parties to maintain good and proper books of audited accounts on all income and expenditures relating to the suit property
  4. 4.The records of accounts and audit to be filed in Court
  5. 5.Appellant/Applicant granted 21 days leave to compile and serve a well bound and paginated Record of Appeal
  6. 6.Mention on 6th May 2026 for directions on admission and mode of disposal of the Appeal pursuant to Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16
On appeal from
Magistrates' Court (Environment and Land), Kwale
MCELC No. E051 of 2025 - Prof. Mohamed Abdallah Swazuri v Kavunza Nzumbi and Kenya Power and Lighting Company
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nzumbi v Swazuri & another (Environment and Land Appeal E012 of 2025) [2026] KEELC 620 (KLR)", Case Analysis (2026). Notice of Motion dated 4th September 2025 (Appeal from MCELC No. E051 of 2025, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/620/eng@2026-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.