Kalema v Memus & another (Environment and Land Case E029 of 2025) [2026] KEELC 739 (KLR)
The bottom line
#A Kenyan court refused a stay of execution in an adverse possession case because the land owner showed no real loss, but froze the situation quo until the appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was made timeously
The application was made timeously; it was filed 21 days after the lapse of the 60-day informal stay window granted in the judgment
Judgment was delivered on 14.07.2025 with a 60-day stay of execution window which lapsed on 14.09.2025. The application was filed on 07.10.2025, being 21 days after the lapse of that window. The Respondent did not seriously attack this limb, and the court found the application was made timeously.
Whether substantial loss was demonstrated
Substantial loss was not demonstrated; if the appeal succeeds, rectification of the register back to the Applicant would remedy the position
The Applicant argued that being the registered proprietor, transfer of the suit property under the decree would cause hardship if the appeal succeeds. The court held there is a valid decree under challenge, but if the appeal succeeds an order rectifying the register back to the Applicant would issue, so substantial loss was not demonstrated beyond mere deposition.
Which orders ought to issue despite failure to meet the threshold
Stay was refused, but the court confirmed the status quo orders of 19.01.2025 pending the intended appeal, preserving possession and the register
Though the threshold for stay was not met, the court invoked practice direction 28K (Gazette Notice 5178/2014) empowering courts to issue status quo orders to preserve suit property. The prevailing status quo was deemed to be the Respondent's occupation and the property's registration in the Applicant's name.
Legal principles established
#- Stay of execution pending appeal from a trial court to the Court of Appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules, whose conditions are timeliness, substantial loss and security
- Arguability of the appeal and the appeal being rendered nugatory are principles for stay at the Court of Appeal under Rule 5(2)(b), not conditions before a trial court under Order 42 Rule 6
- Mere deposition of substantial loss without demonstration does not satisfy the Order 42 Rule 6 threshold
Court orders
#- 1.Stay of execution of the judgment and decree dated 14th January 2025 pending the intended appeal is refused
- 2.Status quo orders issued on 19.01.2025 confirmed pending hearing and determination of the intended appeal
- 3.Status quo on the ground: the Respondent to remain in possession but not undertake any developments
- 4.Status quo on the register: the suit property to remain in the name of the registered proprietor, the Applicant
- 5.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; practice direction number 28K issued vide Gazette Notice number 5178/2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalema v Memus & another (Environment and Land Case E029 of 2025) [2026] KEELC 739 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 6th October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/739/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.