Mulondo v Nyawaga & another (Land Case Appeal E048 of 2025) [2026] KEELC 2356 (KLR)
The bottom line
#A Siaya landowner who appealed an eviction can keep his land untouched for now, provided he deposits his title deed in court as security within 14 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the threshold of a valid preliminary objection
The preliminary objection was dismissed because it required factual inquiry and cited provisions in the abstract without identifying a crisp point of law.
Applying Nitin Properties and Mukisa Biscuits, the court held that determining whether the applicant complied with directions of 10th December 2025 would require examining affidavits of service, court proceedings and email transmissions - factual inquiries outside a preliminary objection. The omnibus second limb citing multiple statutory and constitutional provisions disclosed no precise legal defect. Invoking constitutional articles in the abstract cannot defeat proceedings at an interlocutory stage.
Whether the Court of Appeal Rules service requirements applied to this appeal
The Court of Appeal Rules did not apply to an appeal from a subordinate court to the ELC; no notice of appeal is required in such appeals.
The respondents' reliance on Rules 79(1) and 86(b) of the Court of Appeal Rules was misplaced because the matter is an appeal and interlocutory application before the Environment and Land Court in its appellate jurisdiction from a subordinate court, not an appeal to the Court of Appeal. The procedural regime of the Court of Appeal Rules therefore does not govern, and there is no notice of appeal requirement.
Whether the applicant satisfied the prerequisites for stay of execution under Order 42 Rule 6(2)
The court found substantial loss established, held the delay was not fatal given the circumstances, and imposed the deposit of the title deed as security, allowing the application.
On delay, although 143 days elapsed, the appellant had filed the memorandum of appeal within the Section 79G timeline and had taken steps to preserve the subject matter through a restriction registered by the Land Registrar. On substantial loss, dispossession from one's home and the risk of subdivision and third-party dealings would render the appeal nugatory. On security, the court adopted the respondents' own proposal that the title deed be deposited in court, with ancillary restraints against waste.
Legal principles established
#- A preliminary objection must be raised on a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if facts must be ascertained or judicial discretion is implicated.
- The absence of a specific proposal for security does not automatically defeat an application for stay; the court has discretion to determine the appropriate form of security and may impose conditions.
- Dispossession from one's home and agricultural land constitutes substantial loss capable of being irreplaceable and not adequately compensable in damages.
- Unreasonable delay must be assessed against the particular circumstances of each case, not merely by counting the days elapsed.
Court orders
#- 1.The Notice of Preliminary Objection dated 5th February 2026 is dismissed with no orders as to costs
- 2.The Notice of Motion Application dated 9th December 2025 is found to have merit and is allowed
- 3.A stay of execution of the orders issued by the trial court is granted pending the hearing and determination of the appeal or until further orders of the court
- 4.As a condition of stay, the Appellant/Applicant shall, within fourteen (14) days of the date of the Ruling, deposit the original Certificate of Title for parcel LR No. East Ugenya/anyiko/18 in court as security for the due performance of the decree of the trial court
- 5.Pending the hearing and determination of the appeal, the Appellant/Applicant is restrained from cutting down trees, subdividing, charging, transferring, alienating or otherwise despoiling parcel LR No. East Ugenya/anyiko/18
- 6.Costs of the application shall abide the outcome of the Appeal
- On appeal from
- Subordinate court (trial court) - name not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court from a subordinate court under the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulondo v Nyawaga & another (Land Case Appeal E048 of 2025) [2026] KEELC 2356 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2356/eng@2026-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.