Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 18th June 2025 in ELC Case No. E093 of 2023· [2026] KEELC 1741 (KLR)

Kenafric Properties Limited v Denyo & 65 others (Environment and Land Case E093 of 2023) [2026] KEELC 1741 (KLR)

Environment and Land Court
23 March 2026
1,862 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

#

A Kenyan court refused to stop an eviction because the applicants waited two years, showed no real loss, and the eviction had already happened.

What this practically means

#

Executive summary

#
The intended defendants, represented by Alphonce Amadi, moved the Environment and Land Court at Nairobi by notice of motion dated 18th June 2025 seeking, among other reliefs, stay of execution of the ruling delivered on 15th June 2023 by M.D. Mwangi J in ELC Case No. E093 of 2023 (Kenafric Properties Limited v George Odanga Denyo & 34 Others) and the decree of 30th June 2023, setting aside of that ruling and decree, joinder of the applicants as defendants with the National Land Commission, Nairobi City County Government and the EACC as interested parties, leave to file a defence out of time, and injunction/status quo orders over L.R 339/109 (I.R 95767). They claimed over 50 years' possession and that the land was public. The respondent, Kenafric Properties Limited, opposed, asserting lawful acquisition in 2004, trespass and encroachment, lawful eviction notices published in two dailies, compliance with the Land Act, and that eviction had already been executed. Kullow J framed two issues: entitlement to stay of execution and leave to file a defence out of time. Applying Order 42 rule 6, the court found the application filed about two years after the ruling without explanation, failing the delay condition; no substantial loss or identifiable interest was shown; and execution had already occurred, so orders would be futile. No triable issues were identified to warrant a defence. The notice of motion was dismissed with each party bearing their own costs.

Key legal issues

#
01

Entitlement to stay of execution under Order 42 rule 6

Holding

Stay refused: the application was filed about two years after the ruling with no explanation for the delay, no substantial loss or identifiable interest was demonstrated, and execution had already been completed.

Reasoning

Order 42 rule 6 requires substantial loss, absence of unreasonable delay and security. The ruling was delivered on 15th June 2023 but the application was filed on 18th June 2025 with no reasonable explanation, failing the first condition. The applicants showed no identifiable interest in the suit or pleadings, hence no substantial loss. The respondent demonstrated by photographs that eviction had already occurred, so orders would be made in futility.

p. 4
02

Leave to file defence out of time and joinder

Holding

Refused because no triable issue was identified that would arise in a defence.

Reasoning

A party seeking leave to defend out of time must raise identifiable triable issues. The applicants, claiming long possession of public land, raised nothing triable and showed no identifiable stake in the property or proceedings, so leave and joinder could not be granted. Cumulatively, with execution complete, the entire application was unsustainable and moot.

p. 4

Legal principles established

#
  • The conditions for stay of execution under Order 42 rule 6 are substantial loss, application without unreasonable delay, and security; failure of any defeats the application.
  • Substantial loss is the cornerstone for granting stay; without evidence of it, stay cannot issue.
  • A court will not make orders in futility where the events sought to be stayed have already occurred.

Court orders

#
  1. 1.The notice of motion application dated 18th June 2025 is hereby dismissed.
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Order 42 rule 6(1) of the Civil Procedure Rules; inherent powers to review/set aside (Order 45 invoked by the application)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenafric Properties Limited v Denyo & 65 others (Environment and Land Case E093 of 2023) [2026] KEELC 1741 (KLR)", Case Analysis (2026). Notice of Motion dated 18th June 2025 in ELC Case No. E093 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1741/eng@2026-03-23

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