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ELCAllowedNot stated in the judgment (appeal from Makueni MCELC Case No. E030/2021)· [2026] KEELC 768 (KLR)

Mbisi & 4 others v Nduto & another (Environment and Land Appeal E007 of 2025) [2026] KEELC 768 (KLR)

Environment and Land Court
12 February 2026
2,032 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court halted an eviction pending appeal because the family showed quick action, real hardship, and offered Kshs. 100,000 security.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Makueni (Obaga J) determined a Notice of Motion dated 3rd May 2025 by the Appellants/Applicants seeking stay of execution of the judgment and decree in the counterclaim delivered by the subordinate court on 24th April 2025 in Makueni MCELC Case No. E030/2021, pending hearing and determination of their appeal. The Applicants, who claimed occupation and development of portions of the suit property Makueni/Kyaluma/3 under sale agreements dating back to 1987 and 2011, contended that eviction would cause substantial loss, that the appeal was arguable, and that they were willing to furnish security. The Respondents opposed, contending the application failed the Order 42 Rule 6 thresholds and that no positive order capable of being stayed existed. The court framed a sole issue: whether the Applicants had demonstrated merit in their application for stay. Applying Order 42 Rule 6(1) and (2) and authorities including Butt v Rent Restriction Tribunal, Kenya Shell Ltd v Kibiru, James Wangalwa v Cheseto and Arun C Sharma v Ashana Raikundalia, the court found the eviction and demolition order would cause the Applicants hardship and substantial loss, the application was filed without delay, an arguable appeal existed, and security could be given. The application was allowed in terms of prayer 3, conditional upon the Applicants depositing Kshs. 100,000/= within 60 days as security for any decree ultimately binding on them. The ruling was delivered on 12th February 2026 via Microsoft Teams, with Ms. Sila appearing for the Respondent and Mr. Mwanzia for the Applicant.

Key legal issues

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Whether the Applicants satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6

Holding

The application was allowed: the Applicants demonstrated substantial loss (eviction and demolition of developments supporting their livelihoods), filed the application without unreasonable delay (9 days after judgment), showed an arguable appeal, and offered security.

Reasoning

The court noted the subordinate court had ordered eviction and demolition of structures on Makueni/Kyaluma/3 per the counterclaim. Photographs evidenced extensive developments. The application was filed on 3rd May 2025 following judgment on 24th April 2025, so there was no delay. The memorandum of appeal disclosed arguable grounds, and the Applicants offered security; the court imposed a deposit of Kshs. 100,000/= within 60 days, balancing the Applicants' right of appeal against the Respondents' right to enjoy the fruits of their judgment.

p. 4

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution pending appeal.
  • Security under Order 42 Rule 6 is to guarantee due performance of the decree, not to punish the judgment-debtor.

Court orders

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  1. 1.Stay of execution of the judgment and decree/orders in the counterclaim delivered on 24/4/2025 granted in terms of prayer 3 pending hearing and determination of the appeal
  2. 2.Applicants to deposit Kshs. 100,000/= within 60 days as security for any decree which may ultimately be binding upon them
  3. 3.Costs of the application provided for (costs to the applicants' application allowed in their favour)
On appeal from
Magistrates' Court (Makueni)
Makueni MCELC Case No. E030/2021
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (appellate jurisdiction over subordinate court decree)

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, "Mbisi & 4 others v Nduto & another (Environment and Land Appeal E007 of 2025) [2026] KEELC 768 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal from Makueni MCELC Case No. E030/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/768/eng@2026-02-12

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