Chitelesi v Mukhonje (Suing as the Administrator of the Estate of Thomas Mukhonje) & 2 others (Environment and Land Appeal E003 of 2023) [2026] KEELC 1128 (KLR)
The bottom line
#The court let the applicant represent himself but refused to protect his land title, ruling that a dismissed appeal cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Leave to act in person after judgment
Leave granted; there was no impediment to the applicant representing himself
Order 9 Rule 9 of the Civil Procedure Rules requires a party previously represented by an advocate up to and after judgment to seek leave to act in person. The court emphasised that representation is a constitutional right, entitling a party either to represent themselves or be represented by counsel of choice. Finding no impediment, the court allowed that prayer.
Whether stay of execution pending appeal to the Court of Appeal was warranted
Refused - the appeal was dismissed, and a dismissal being a negative order is incapable of being stayed
The court reiterated that under Order 42 Rule 6 an applicant must demonstrate substantial loss, absence of unreasonable delay and willingness to provide security. It found the prayer ambiguous, but more decisively held that because the appeal itself had been dismissed on 14th July 2025, there was nothing capable of being stayed; a dismissal is a negative order.
Whether a temporary injunction could issue pending appeal
Refused - the court lacked jurisdiction to grant an injunction pending appeal, having already determined the parties' rights on merit
Having heard and determined the appeal on its merits, the court had already pronounced itself on the rights of the parties. It therefore held it had no jurisdiction to grant temporary injunction orders in the nature of interlocutory relief pending an appeal to the Court of Appeal, and declined that prayer.
Legal principles established
#- A dismissal is a negative order and is incapable of being stayed; stay of execution cannot issue in respect of a dismissed appeal
- Substantial loss is a qualitative concept, not a mathematical formula, referring to any loss of real worth or value as distinguished from a nominal loss
- Representation is a constitutional right and a party may represent themselves; leave to act in person after judgment under Order 9 Rule 9 should be granted where there is no impediment
Court orders
#- 1.Leave granted to the appellant/applicant to act in person in this matter
- 2.The application dated 25th July 2025 dismissed with costs to the 1st respondent
- On appeal from
- Butali Senior Principal Magistrates Court
- ELC No. 29 of 2019
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal) and Order 9 Rule 9 (leave to act in person after judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chitelesi v Mukhonje (Suing as the Administrator of the Estate of Thomas Mukhonje) & 2 others (Environment and Land Appeal E003 of 2023) [2026] KEELC 1128 (KLR)", Case Analysis (2026). Notice of Motion dated 25th July 2025 in the appeal from Butali Senior Principal Magistrates Court ELC No. 29 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1128/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.