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ELCPartially AllowedNot stated in judgment

Kibiku (Suing as the Administrator and Legal Representative of the Estate of Gibson Kibiku - Deceased) v Deacons Enterprises Limited & another; Nyawira & 31 others (Interested Parties) (Enviromental and Land Originating Summons 139'B' of 2021) [2026] KEELC 1069 (KLR)

Environment and Land Court
26 February 2026
6,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused execution of a land judgment until KES 5 million is deposited, and refused to let non-parties challenge the ruling.

What this practically means

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Executive summary

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The Court (Mogeni J, Environment and Land Court, Thika) delivered a ruling on three applications arising from a judgment dated 31/07/2025 which, in an Originating Summons filed in 2012, declared Serah Wambui Kibiku's late husband entitled to 25 acres of LR No. 20695 Thika Municipality by adverse possession. First, the Interested Parties sought stay of execution under Order 42 Rule 6. The Court applied the three-pronged test of substantial loss, reasonable delay and security, holding that in land matters substantial loss is not confined to physical eviction: consolidation of the land and cancellation of the Applicants' titles would render a successful appeal nugatory. The application was filed four days after judgment, satisfying timeliness. A conditional stay was granted pending Nairobi Civil Appeal No. E790 of 2025, conditioned on a deposit of KES 5,000,000 within 60 days as security, failing which the stay lapses automatically. Second, the Interested Parties sought a temporary injunction under Order 40, including a mandatory injunction to compel removal of a perimeter wall erected in December 2025, and relied on the Erinford principle as explained in James Juma Muchemi. The Court found serious questions to be tried but held the injunctive prayer overtaken by events, since prayer 4 of that application incorporated the stay orders which were granted. Third, non-parties (including Mwai Mathenge, an advocate and director) sought review of the judgment under Order 45, alleging they were never served, their titles predated the adverse possession claim, and their Articles 40 and 50 rights were violated. The Court held that review under Order 45 is generally unavailable to non-parties, whose remedy lies in a separate suit, an application to set aside, or an appeal; and that a pending appeal restricted the Court's jurisdiction to review its own decision. The review application was dismissed with costs to the Applicants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether stay of execution of the Judgment dated 31/07/2025 should be granted pending appeal
  2. 2.Whether a temporary injunction preserving the suit property pending appeal is merited
  3. 3.Whether non-parties to the suit can obtain a Review of the Judgment under Order 45

Key legal issues

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01

Whether substantial loss was demonstrated for a stay of execution

Holding

Conditional stay granted; substantial loss established because cancellation of titles and consolidation would render a successful appeal nugatory

Reasoning

The Court applied the three-pronged Order 42 Rule 6 test. Relying on Kenya Shell Ltd v Kibiru, it held substantial loss in land matters is not limited to physical eviction; re-subdividing and re-registering multiple titles after consolidation would be a significant administrative and legal burden. The application was filed four days after judgment, satisfying timeliness, and security was imposed as a condition.

p. 4
02

Whether a temporary injunction pending appeal was merited

Holding

The injunctive relief was not separately granted as it was overtaken by events following the grant of stay

Reasoning

The Court analysed the application under Order 40 and the inherent jurisdiction (Section 3A), noting the power to grant injunction pending appeal is sui generis and guided by the nugatory-appeal principle (Butt v Rent Restriction Tribunal). It found serious questions to be tried but observed prayer 4 of the injunction application incorporated the stay orders, so granting the stay settled the injunction.

03

Whether non-parties could obtain a Review of the judgment under Order 45

Holding

Review application dismissed; non-parties cannot review a judgment, and a pending appeal divests the trial court of jurisdiction to review

Reasoning

The Court held Order 45 review is reserved for persons aggrieved who were parties to the suit; strangers must sue separately, apply to set aside, or appeal. Further, since the defendants had already appealed to the Court of Appeal, the trial court's jurisdiction to review its own decision was restricted, and review is not a substitute for an appeal.

p. 12

Legal principles established

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  • In land matters, substantial loss for stay purposes is not limited to physical eviction; rendering a successful appeal nugatory through cancellation of titles and consolidation constitutes substantial loss
  • An injunction pending appeal is granted under the Court's inherent jurisdiction (Section 3A) and the overarching principle is preventing the appeal from being rendered nugatory
  • A non-party to a suit cannot maintain an application for Review under Order 45; the proper remedy is a separate suit, an application to set aside, or an appeal
  • A Review application is generally not maintainable once an appeal against the same decision has been filed

Court orders

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  1. 1.A conditional stay of execution of the Judgment and Decree dated 31/07/2025 granted pending hearing and determination of Nairobi Civil Appeal No. E790 of 2025
  2. 2.Applicants to deposit KES 5,000,000 within 60 days in joint names of the lawyers as security for due performance of the Decree
  3. 3.In default of the security deposit, the stay automatically stands vacated and the Respondent at liberty to execute
  4. 4.Status quo regarding registration and occupation of LR No. 20695 Thika Municipality maintained until security is deposited or the timeline expires
  5. 5.Application dated 5/12/2025 declared overtaken by events
  6. 6.Application for Review dated 02/02/2026 dismissed with costs to be borne by the Applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6, Order 40 Rules 1 and 2, Order 45 Rule 1 and Section 80, Civil Procedure Act and Rules; Section 3A Civil Procedure Act

Relief refused

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Temporary injunction application dated 5/12/2025

Overtaken by events since the stay application of 04/08/2025 was granted

Application for Review dated 02/02/2026

Applicants were not parties to the suit; a pending appeal restricts the Court's jurisdiction to review its own decision

p. 12

Costs

The Application for Review dated 02/02/2026 is dismissed with costs to be borne by the Applicants; costs of the other applications not expressly provided for in the final orders.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Therefore I am of the view that in the interest of justice a conditional stay is the best award to be given which will balance the interest of the Plaintifi/Respondent and the Defendant/Respondents.
p. 5conditional stay balancing interests
A conditional stay of execution of the Judgment and Decree dated 31/07/2025 is hereby granted pending the hearing and determination of the Appeal Nairobi Civil Appeal No. E790 of 2025.
p. 12final orders - stay
In default of the deposit of the said security within the stipulated time, the stay of execution shall automatically stand vacated, and the Respondent shall be at liberty to proceed with execution.
p. 13final orders - default on security
The Application for Review dated 02/02/2026 is dismissed with costs to be borne by the Applicants.
p. 13final orders - review dismissed
Kenyan Courts have traditionally held that a person aggrieved for the purpose of Review must generally be a party to the suit.
p. 10locus for review by non-parties

Issues in the judgment

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minor

Injunction application dated 1-14 December 2025 (perimeter wall) is described inconsistently within the judgment

minor

The third application seeks review by non-parties whose affidavit is sworn by an advocate described as Director of the 1st Respondent, roles not clarified in the judgment

minor

Judgment records applications dated 2025 and 2026 including 5/12/2025 and 2/02/2026 while the ruling is delivered 26 February 2026; the chronology spans dates beyond ordinary sequential filings

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, "Kibiku (Suing as the Administrator and Legal Representative of the Estate of Gibson Kibiku - Deceased) v Deacons Enterprises Limited & another; Nyawira & 31 others (Interested Parties) (Enviromental and Land Originating Summons 139'B' of 2021) [2026] KEELC 1069 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1069/eng@2026-02-26

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