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ELCDismissedNotice of Motion dated 1st October 2025 (arising from the Appeal decided 11th September 2025)· [2026] KEELC 867 (KLR)

Ndekele (Suing as the Administrator of the Estate of Daniel Mugo ole Kimelok – Deceased) v Kungu & 2 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 867 (KLR)

Environment and Land Court
19 February 2026
3,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his bid to pause a judgment overturning his land title because he couldn't prove he'd suffer real loss while appealing.

What this practically means

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Executive summary

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The 1st Respondent/Applicant, Andrew Mwaura Kungu, moved the Environment and Land Court at Narok by Notice of Motion dated 1st October 2025 under Order 42 rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a stay of the judgment delivered on 11th September 2025 and its consequent decree pending the hearing and determination of his intended appeal to the Court of Appeal. The underlying appeal had reversed the dismissal of Narok CMELC 06 of 2019 and directed that title to parcel Narok Cis Mara/Nkareta/591 be cancelled and revert to the estate of Tentemu Ole Kimelok (deceased). The applicant feared that if the decree was executed, succession proceedings would distribute the estate, including the suit land, rendering his appeal nugatory. The Appellant/Respondent opposed through Grounds of Opposition, contending the application was an abuse of process and that appeals to the Court of Appeal should be handled under the Court of Appeal Rules 2022. The court found no unreasonable delay in filing, but held that the applicant failed to demonstrate substantial loss: he can apply to be joined in the intended succession proceedings and stake his claim as a purchaser, and he had been registered as owner long after the deceased died, without transfer documents, payment of purchase price, or involvement of the administrators. Substantial loss being the cornerstone of stay applications, security did not fall for consideration. Balancing the applicant's appeal rights against the decree-holder's entitlement to the fruits of judgment, the court dismissed the application entirely with costs to the Appellant/Respondent.

Key legal issues

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01

Whether the applicant made the application without unreasonable delay

Holding

There was no unreasonable delay: judgment was delivered on 11th September 2025 and the application filed on 1st October 2025, twenty days later

Reasoning

The court confirmed from the record that the judgment intended to be appealed against was delivered on 11th September 2025 while the application was filed on 1st October 2025. On that chronology it found and held that there was no unreasonable delay in filing the application, satisfying that limb of Order 42 Rule 6.

p. 5
02

Whether the applicant demonstrated substantial loss

Holding

No substantial loss was proved; the applicant can stake his claim as a purchaser in the intended succession proceedings and the beneficiaries would be capable of giving him his portion if he succeeds on appeal

Reasoning

The applicant only alleged that succession proceedings might distribute the estate before his appeal was determined. The court noted he can apply to be joined in the succession proceedings as a purchaser, that appeals do not automatically take long, and that he had only filed a Notice of Appeal. He was registered as owner long after the deceased died and produced no signed transfer forms, so he has no legal or beneficial right over the suit property. Substantial loss not being the cornerstone without proof, the application failed.

p. 6
03

Whether security for due performance should be considered

Holding

It was unnecessary to consider security since substantial loss, the prerequisite, was not proved

Reasoning

Having found that the applicant failed to prove substantial loss, the court held it was not necessary to consider the requirement of security for due performance of the decree. The application consequently failed in its entirety and was dismissed with costs to the Appellant/Respondent.

p. 7
04

Balancing the applicant's appeal rights against the judgment creditor's entitlement

Holding

In balancing the two rights, justice and fairness dictated dismissal since the judgment creditor should enjoy the fruits of his judgment

Reasoning

The court invoked the principle that a successful party is ordinarily entitled to the fruits of his judgment, and that stay of execution can only be granted in exceptional circumstances after great caution. Since the applicant is, in the court's view, without any legal or beneficial rights over the suit property, balancing the rights favoured the Appellant/Respondent enjoying the judgment.

p. 7

Legal principles established

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  • Filing an appeal does not automatically stay execution; the applicant must satisfy the conditions of substantial loss, no unreasonable delay and offer of security under Order 42 Rule 6
  • Substantial loss is the cornerstone of an application for stay of execution pending appeal; without proof of it the application fails
  • In exercising the discretion to stay, the court must balance the applicant's right of appeal against the decree-holder's right to enjoy the fruits of the judgment

Court orders

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  1. 1.The Notice of Motion dated 1st October 2025 is found unmerited and dismissed entirely
  2. 2.Costs of the application awarded to the Appellant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder XLI rule 4(2)(b) (as cited in Butt v Rent Restriction Tribunal)
  • Civil Procedure ActSection 3A
  • Court of Appeal Rules2022 Rules (referenced by the parties)

Cases cited (13)

  • Samuel Kamau Macharia & another vs KCB Ltd & 2 others
    (2012) eKLR
  • Owners of the Motor Vessel Lilian 'S' V Caltex Oil (K) Ltd
    (1989) 1 KLR
  • Teachers Service Commission vs Kenya National Union of Teachers
    Sup. Ct. Appl No.16 of 2015
  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others
    [2013] KECA 378 (KLR)
  • Bellevue Development Company Ltd vs Francis Gikonyo & 7 others
    [2018] eKLR
  • Khaki & 28 others v Juma & 5 others
    (Environment & Land Case 35 of 2019 & Environment and Land Miscellaneous Application E063 of 2020 (Consolidated)) [2025] KEELC 333 (KLR) (5 February 2025) (Ruling)
  • Muchiri versus Rutere
    (Environment & Land Case 319 & 316 of 2017 (Consolidated)) [2023] KEELC 22377 (KLR) (14 December 2023) (Ruling)
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • Century Oil Trading Company Ltd vs. Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007 KLR
  • China City Construction Company Limited & another versus Karisa (Suing as the Administrator and Legal Representative of the Estate of the Late Didlora Mwaka Mwangala)
    (Civil Appeal 105 of 2023) [2024] KEHC 3323 (KLR) (8 April 2024) (Ruling)
  • Kenya Shell Limited v Kibiru
    [1986] KLR 410
  • Machira t/a Machira & Co Advocates versus East African Standard
    [2002] KEHC 1167 (KLR)
On appeal from
Narok Chief Magistrate's Court
CMELC 06 of 2019
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent power to stay execution pending intended appeal to the Court of Appeal)

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, "Ndekele (Suing as the Administrator of the Estate of Daniel Mugo ole Kimelok – Deceased) v Kungu & 2 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 867 (KLR)", Case Analysis (2026). Notice of Motion dated 1st October 2025 (arising from the Appeal decided 11th September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/867/eng@2026-02-19

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