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ELCAllowedNakuru ELC Land Appeal No. E073 of 2025· [2026] KEELC 1281 (KLR)

Koskey & 3 others v Sigei (Suing as the legal administrator of the Estate of Michael Kipsige Too - Deceased) (Environment and Land Appeal E073 of 2025) [2026] KEELC 1281 (KLR)

Environment and Land Court
4 March 2026
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nakuru court halted eviction from disputed land pending appeal, but only because the buyers promised to file their appeal record within 45 days.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 31st October 2025 by the Appellants/Applicants, Paul Koskey and another, seeking stay of execution of a judgment delivered on 29th February 2024 and a decree issued on 27th September 2024 by the Senior Principal Magistrate in Molo ELC No. E030 of 2023, pending the hearing of Nakuru ELC Land Appeal No. E073 of 2025. The appeal challenges a ruling of 30th October 2025 declining to set aside the ex-parte judgment, the Applicants contending they were never served with summons or hearing notices. The Respondent opposed, arguing the appeal was against the ruling, not the judgment, so nothing capable of being stayed was under challenge; that the Applicants were duly served; and that the conditions in Order 42 Rule 6(2) were unmet. The court identified the main issue as whether the Appellants were entitled to stay of execution pending appeal. Relying on RWW v EKW and Waweru v Maina, it held that the appeal, if successful, would set aside the lower court's judgment, establishing a nexus between the appeal and the decree. Finding the Applicants in occupation of land they purchased, facing eviction and substantial loss, and balancing the parties' competing rights, the court granted stay of execution pending appeal, conditional on filing the record of appeal within 45 days, failing which the stay lapses. Costs of the application were to abide the outcome of the appeal.

Key legal issues

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01

Whether the application for stay was competent despite the appeal being against a ruling declining to set aside the judgment rather than against the judgment itself

Holding

The court held the application competent, reasoning that success in the appeal would set aside the underlying judgment and thereby affect the decree, so there was a legal nexus between the appeal and the decree sought to be stayed

Reasoning

The Respondent argued the only appeal was against the ruling of 30th October 2025 declining to set aside the judgment, and that a negative order could not be stayed. The court rejected this, holding that if the appeal succeeds it will essentially set aside the lower court's judgment, and if it fails the Respondent will execute. An appeal against a ruling declining to set aside an ex-parte judgment therefore has a nexus to the decree.

p. 4
02

Whether the Applicants demonstrated substantial loss to justify stay under Order 42 Rule 6(2)

Holding

The court found substantial loss demonstrated by the Applicants' occupation of the suit land and the risk of eviction, and held it in the interests of justice to grant stay conditional on filing a record of appeal within 45 days

Reasoning

The Applicants deponed they purchased the suit land, are in occupation with their families, and face eviction if stay is refused. The court, balancing the rights of the successful litigant against the appellant's right of appeal as guided by RWW v EKW, found that eviction would amount to substantial loss and that justice favoured granting stay, conditioned on expeditious filing of the record of appeal.

p. 4

Legal principles established

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  • The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while balancing the appellant's right of appeal against the successful litigant's right to enjoy the fruits of judgment
  • Where the appeal is against a ruling declining to set aside an ex-parte judgment, the appeal, if successful, will set aside the underlying judgment, so the decree is capable of being stayed

Court orders

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  1. 1.Stay of execution of the judgment delivered on 29th February, 2024 and the decree issued on 27th September, 2024 in Molo ELC No. E030 of 2023, pending the hearing and determination of the appeal
  2. 2.The Appellants to file a record of appeal within 45 days failing which the order of stay lapses
  3. 3.Costs of the application to abide by the outcome of the appeal
On appeal from
Senior Principal Magistrate's Court, Molo
Molo ELC No. E030 of 2023
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, in exercise of appellate jurisdiction over the subordinate 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, "Koskey & 3 others v Sigei (Suing as the legal administrator of the Estate of Michael Kipsige Too - Deceased) (Environment and Land Appeal E073 of 2025) [2026] KEELC 1281 (KLR)", Case Analysis (2026). Nakuru ELC Land Appeal No. E073 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1281/eng@2026-03-04

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