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ELCDismissedNot stated in the excerpt (suit in which judgment was delivered on 22nd September 2025)· [2026] KEELC 1188 (KLR)

Kasena v Katsole & 3 others (Environment and Land Case E034 of 2024) [2026] KEELC 1188 (KLR)

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

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A Kenyan court refused to pause a land judgment because the losing party didn't live on or develop the land, so they faced no real harm.

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 Malindi (Mwangi Njoroge, J) on a Notice of Motion dated 1st October 2025 in which the applicants, aggrieved by the court's judgment of 22nd September 2025, sought a stay of execution of that judgment pending the hearing and determination of an intended appeal to the Court of Appeal. The application was supported by the sworn affidavit of Mumba Katsole and grounded principally on the contention that the issue of trust never arose before the court in the first instance and that the applicants were condemned unheard on it. The respondent opposed the application by a replying affidavit dated 9th October 2025, asserting that no execution had been commenced, that the application was a delaying tactic, and that the applicants would suffer no irreparable loss since they neither live on nor have developed the suit land; the respondent himself has lived on and developed the land for over fifty years, having purchased it through his grandfather using dowry paid for Nyevu, daughter of Menza. The court found that the applicants' Notice of Appeal dated 29th September 2025 meant an appeal was in existence under Order 42 rule 6 of the Civil Procedure Rules. However, on the question of irreparable loss, it held that the applicants are not in occupation of and have effected no developments on the suit land, so they would suffer no irreparable loss and the appeal would not be rendered nugatory without a stay. The application was dismissed with costs to the respondent on 26th February 2026.

Key legal issues

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01

Existence of an appeal for purposes of stay under Order 42 rule 6

Holding

A Notice of Appeal filed on 29th September 2025 established that an appeal was in existence.

Reasoning

The court considered whether the intended appeal to the Court of Appeal was in existence, a threshold requirement under Order 42 rule 6. It noted the applicants had filed a Notice of Appeal dated 29th September 2025 and, on that basis, treated the appeal as existing for purposes of the stay application. This limb was satisfied, but it did not by itself entitle the applicants to a stay.

p. 2
02

Irreparable loss and nugatory appeal

Holding

The application failed because the applicants are neither in occupation of nor have developed the suit land, so no irreparable loss would flow from execution.

Reasoning

On the merits, the court weighed the applicants' claim of being condemned unheard on the issue of trust against the respondent's evidence that he lives on and has developed the suit land for over fifty years while the applicants live on their own ancestral land at Mihingoni. Finding the applicants neither in occupation nor developers of the land, the court held they would suffer no irreparable loss and the appeal would not be rendered nugatory, so the stay application lacked merit.

p. 2

Legal principles established

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  • For purposes of Order 42 rule 6, the filing of a Notice of Appeal suffices to show that an appeal is in existence.
  • A party not in occupation of, and without developments on, suit land does not stand to suffer irreparable loss if execution proceeds.

Court orders

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  1. 1.The Notice of Motion dated 1st October 2025 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending 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, "Kasena v Katsole & 3 others (Environment and Land Case E034 of 2024) [2026] KEELC 1188 (KLR)", Case Analysis (2026). Not stated in the excerpt (suit in which judgment was delivered on 22nd September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1188/eng@2026-02-26

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