Too v Kwambai & another (Environment and Land Appeal E005 of 2025) [2026] KEELC 1114 (KLR)
The bottom line
#A Kenyan land court refused to pause a judgment's execution because the appellant never filed an appeal against that judgment, only against an earlier ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution of the judgment and decree in Kericho CM ELC Case No. E130 of 2021 should be granted pending appeal
The application was dismissed because the applicant sought stay of a judgment against which no appeal had been filed; he had only appealed from the ruling of 21st January 2025 dismissing his application to set aside the judgment.
Order 42 Rule 6(2) requires, among other things, that substantial loss may result, that the application is made without unreasonable delay, and that security is given. However, the threshold precondition is a pending appeal against the judgment whose execution is to be stayed. The applicant's memorandum of appeal challenges only the ruling of 21st January 2025, not the judgment of 13th August 2024. Relying on Njoki & another v Goko [2025] KEELC 5404 (KLR), the court held that an application for stay under Order 42 Rule 6 would not lie where no appeal has been filed, and that it would be absurd to stay a judgment where no appeal has been lodged.
Costs of the application
Costs were awarded to the Respondents as the successful parties, costs following the event under Section 27 of the Civil Procedure Act.
The court applied the general rule that costs follow the event under Section 27 of the Civil Procedure Act, and having found the application devoid of merit, dismissed it with costs to the Respondents.
Legal principles established
#- An application for stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules presupposes a filed and pending appeal; where no appeal has been lodged against the judgment sought to be stayed, the application does not lie.
- Costs follow the event under Section 27 of the Civil Procedure Act; a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise.
Court orders
#- 1.The application dated 13th February, 2025 is dismissed with costs
- On appeal from
- Chief Magistrate's Court at Kericho (ELC)
- Kericho CM ELC Case No. E130 of 2021
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the trial court in a suit from Kericho CM ELC Case No. E130 of 2021; application brought under Order 42 Rule 6 & Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3 & 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Too v Kwambai & another (Environment and Land Appeal E005 of 2025) [2026] KEELC 1114 (KLR)", Case Analysis (2026). Kericho CM ELC Case No. E130 of 2021 (appeal therefrom; Notice of Motion dated 13th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1114/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.