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ELCAllowedELC No. 005 of 2022 (pleadings filed under ELC No. 010 of 2022 – Lenny Muraya Mwangi v Carola Tolksdorf)· [2026] KEELC 1012 (KLR)

Tolksdorf v Mwangi & 2 others (Environment and Land Case E055 of 2022) [2026] KEELC 1012 (KLR)

Environment and Land Court
23 February 2026
8,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale halted an eviction from Galu Kinondo land, but only after the landowner paid Kshs 1.5 million security and committed to pursuing her case in the lower court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (L. L. Naikuni J) on a Notice of Motion dated 6th March 2025 by Carola Tolksdorf, the Plaintiff/Applicant, seeking stay of execution of the judgment delivered on 27th February 2025 by Addraya Dena J, and maintenance of status quo over parcel Kwale/Galu Kinondo/1203 pending the outcome of Mombasa SRMCC/364/2011. The judgment had dismissed the Applicant's suit challenging the 1st Defendant's title (acquired at a public auction in execution of the decree in SRMCC 364 of 2011) and struck out the 1st Defendant's Counter-Claim, holding that under Section 34 of the Civil Procedure Act all issues arising from the auction had to be dealt with in the executing court. The 1st Defendant thereafter issued an eviction notice dated 3rd March 2025. The 2nd Defendant, Francis Maina Njonjo, opposed, arguing that no appeal lay against the judgment, that no suit remained pending in the lower court, and that the eviction notices were issued under Sections 152A–152E of the Land Act on the basis of ownership, not in execution of the judgment. Applying the tripartite test in Order 42 Rule 6(2) — substantial loss, absence of undue delay and security — the court found the application filed 7 days after judgment, that eviction posed irreparable harm, and that the balance of convenience favoured preserving the status quo. The court allowed the application, stayed execution pending final determination of Mombasa SRMCC/364/2011, restrained eviction from the suit parcel, and required a conditional deposit of Kshs. 1,500,000/= in an interest-earning escrow account within 30 days, failing which the application would stand dismissed, plus proof of tangible steps in the lower court within 21 days. Each party was ordered to bear their own costs. The court also noted a file mix-up between ELC No. 005 and No. 010 of 2022 and proposed consolidation under Section 81(h).

Key legal issues

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01

Whether the stay of execution application satisfied the Order 42 Rule 6(2) conditions

Holding

The application satisfied all three conditions: it was filed 7 days after judgment without undue delay, the Applicant demonstrated substantial and irreparable loss through the imminent eviction, and security was imposed by way of a conditional deposit.

Reasoning

The court applied the established tripartite test under Order 42 Rule 6(2). It found the eviction notice dated 3rd March 2025 disclosed an imminent risk of dispossession which would render any later relief nugatory. The referral of parties to the lower court in the judgment, and the pending Mombasa SRMCC/364/2011, gave a genuine and arguable basis for finding execution premature. Security in the form of an escrow deposit was imposed to balance the parties' competing rights.

p. 13
02

Whether the balance of convenience favoured preservation of the status quo

Holding

Yes. The irreversible prejudice of eviction outweighed the Respondent's interest in immediate execution, which could be compensated by security or an undertaking as to damages.

Reasoning

The court compared the consequences of granting or refusing the stay on both sides. Loss of physical possession of the land would be irreversible and not compensable in money, whereas the Respondent's proprietary interest could be protected by an undertaking as to damages or security. The Respondent did not demonstrate irreparable prejudice from the stay.

p. 13
03

Whether costs should follow the event

Holding

No; the court reserved its discretion and ordered each party to bear their own costs of the application.

Reasoning

Although Section 27(1) of the Civil Procedure Act provides that costs follow the event, the court expressly reserved its discretion on the costs of this interlocutory application and ordered each party to bear their own costs, reflecting the equivocal posture of the parties pending the lower court proceedings.

p. 15

Legal principles established

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  • The three conditions for granting a stay of execution pending appeal under Order 42 Rule 6(2) — substantial loss, no unreasonable delay and security — are conjunctive and must all be met.
  • Eviction and loss of possession of land constitute irreparable harm for which monetary compensation is inadequate.

Court orders

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  1. 1.Notice of Motion application dated 6th March 2025 found to have merit and allowed subject to fulfilment of pre-conditions
  2. 2.Stay of execution of the decree arising from the judgment delivered on 27th February 2025 and of all consequential orders, pending the final determination of Mombasa SRMCC/364/2011 or until further orders
  3. 3.Order restraining the 1st Respondent, his servants, agents and any person acting on his instructions from evicting, dispossessing or removing the Applicant or any person in occupation from parcel Kwale/Galu Kinondo/1203 while the stay is in force
  4. 4.Applicant to deposit Kshs. 1,500,000/= within 30 days in an interest-earning Escrow joint bank account in the names of Lawrence Obonyo Legal Advocates and Oyunge Associates Advocates as security for due performance of the decree
  5. 5.In default of compliance, the application to stand dismissed automatically
  6. 6.Applicant to file and serve within 21 days an affidavit proving tangible steps taken in Mombasa SRMCC/364/2011 to prosecute the referral
  7. 7.Mention on 23rd April 2026 to track progress
  8. 8.Each party to bear their own costs
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (original jurisdiction of the Environment and Land Court)

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, "Tolksdorf v Mwangi & 2 others (Environment and Land Case E055 of 2022) [2026] KEELC 1012 (KLR)", Case Analysis (2026). ELC No. 005 of 2022 (pleadings filed under ELC No. 010 of 2022 – Lenny Muraya Mwangi v Carola Tolksdorf). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1012/eng@2026-02-23

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