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ELCPartially AllowedNot stated in the judgment (appeal from Loitokitok Magistrate's Court ELC Case No. E002 of 2024)· [2026] KEELC 1773 (KLR)

Melompuki & another v Nthiani (Environment and Land Appeal E046 of 2025) [2026] KEELC 1773 (KLR)

Environment and Land Court (sitting virtually at Nakuru)
19 March 2026
1,682 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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Kenya's Environment and Land Court paused execution of a land boundary judgment pending appeal, but only because the appellants must first deposit Kshs. 200,000 as security.

What this practically means

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Executive summary

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This ruling by L Komingoi, Judge, determines a Notice of Motion dated 28th July 2025 brought by the Appellants/Applicants under Sections 3A, 63(e) and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the judgment and decree of the Lower Court delivered on 1st July 2025 in Loitokitok Magistrate's Court ELC Case No. E002 of 2024, pending the hearing and determination of their appeal. The applicants contended that execution involving beacon placement on parcel Loitokitok/Enkariak-Rongena/5598 would irreversibly alter the boundaries of their parcel 5869, causing substantial loss arising from historical mutation errors rather than trespass, and that any attempted execution outside the court-sanctioned thirty-day surveyor mandate was ultra vires. The respondent opposed, arguing the application was overtaken by events because the decree had been implemented, that claims of substantial loss were unsubstantiated, and that the appeal issues were res judicata. The court framed two issues: whether the stay was merited and costs. Guided by Butt v Rent Restriction Tribunal and Rhoda Mukuma v John Abuoga, it found that execution involving boundary alteration would render the appeal nugatory and that the status quo had to be preserved. The court granted the stay, conditioned on the appellants depositing Kshs. 200,000 in a joint interest-earning account within forty-five days, failing which the stay lapses, with costs of the application abiding the appeal.

Key legal issues

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01

Whether the applicants satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The application was merited; substantial loss was demonstrated because execution involving boundary alteration and beacon placement would render the appeal nugatory, and security in the sum of Kshs. 200,000 was imposed as a condition.

Reasoning

The court found that land disputes are emotive and that executing a judgment entailing boundary demarcation before the appeal is heard could render the appeal nugatory. Relying on Butt v Rent Restriction Tribunal and Rhoda Mukuma v John Abuoga, it held that substantial loss is assessed case by case and the status quo must be preserved. It exercised its discretion under Order 42 Rule 6(2)(b) to require security of Kshs. 200,000, with the stay lapsing in default of the deposit.

p. 3
02

Whether the application had been overtaken by events owing to the alleged implementation of the decree on 8th August 2025

Holding

This objection did not defeat the application; the court granted a stay of execution of the judgment pending appeal notwithstanding the alleged implementation.

Reasoning

The respondent argued the decree had been implemented and the application was overtaken by events. The appellants contended they were never served with an implementation notice and that any site visit or beacon placement outside the court-sanctioned thirty-day timeline from 1st July 2025 was ultra vires and void. The court did not dismiss the application on this ground and proceeded to grant the stay sought.

p. 3

Legal principles established

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  • Where execution of a judgment involving alteration and demarcation of boundaries would render an appeal nugatory, a stay of execution ought to be granted to preserve the appeal's utility.
  • Substantial loss cannot be quantified by a fixed standard and must be assessed on the circumstances of each case; the status quo should be preserved to prevent loss that would render an appeal nugatory.
  • The court may grant stay of execution conditional on the applicant furnishing security for the due performance of the decree.

Court orders

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  1. 1.There be a stay of execution of the Judgment dated 1st July 2025 in Loitokitok Magistrate's Court ELC Case No. E002 of 2024 pending the hearing and determination of the appeal
  2. 2.The appellants do deposit Kshs. 200,000 in a joint interest earning account in the joint names of the counsels on record for appellants and the respondent within forty-five (45) days of this Ruling
  3. 3.In default of the deposit, orders of stay shall automatically lapse
  4. 4.Costs of the application shall abide the outcome of the Appeal
On appeal from
Loitokitok Magistrate's Court (ELC)
E002 of 2024
Jurisdiction invoked
Sections 3A, 63(e) and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

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, "Melompuki & another v Nthiani (Environment and Land Appeal E046 of 2025) [2026] KEELC 1773 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal from Loitokitok Magistrate's Court ELC Case No. E002 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1773/eng@2026-03-19

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