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ELCDismissedNotice of Motion dated 16th October, 2025 (appeal from MELC Case No. E020 of 2023, Kilungu Principal Magistrate's Court)

Kaula v Muasa (Suing as the Administrator of the Estate of Ndinda Muasa - Deceased) & another (Environment and Land Appeal E020 of 2025) [2026] KEELC 3071 (KLR)

Environment and Land Court
21 May 2026
1,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed a stay of execution because the applicant could not show he would suffer real harm without one.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 16th October 2025 in which the Applicant, a nephew of the Respondents, sought stay of execution of the judgment of the Principal Magistrate's Court at Kilungu in MELC Case No. E020 of 2023 delivered on 5th September 2025, pending appeal, including an order restraining any interference with the register of the suit property Machakos/Ulu/71 measuring 12.0 hectares. The Respondents had successfully sued at the trial court for a declaration that the suit property was owned equally by Ndinda Muasa and Mukulu Kaula (the Applicant's mother) and that one Respondent, Serah Mueni Muasa, had purchased 9 acres from the Applicant; the Applicant's counterclaim for an injunction was dismissed. The Applicant argued that execution would cancel the title, displace his family and generate multiplicity of suits by third parties who purchased land from Mukulu Kaula. The Respondents countered that they were entitled to the fruits of their judgment, that succession proceedings must precede execution, and that the Applicant was intermeddling in the estate. The court identified the sole issue as whether the Applicant met the threshold for stay pending appeal, applying the principles of no unreasonable delay, substantial loss, and security. Finding no delay, but holding that the Applicant would suffer no substantial loss since both families had occupied and developed the land for over fifty years and success on appeal would restore the title, the court dismissed the application with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has met the threshold for grant of stay pending appeal

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

No delay - the application was filed a few days before the 45-day stay granted at trial lapsed

Reasoning

Judgment was delivered on 5th September 2025 with a 45-day stay; the motion was filed on 16th October 2025, before that stay lapsed, so the delay limb was satisfied.

p. 2
02

Whether the Applicant demonstrated substantial loss rendering the appeal nugatory

Holding

No substantial loss demonstrated; if the appeal succeeds the title will revert to Mukulu Kaula and the appeal will not be nugatory

Reasoning

Both families have lived on and developed the suit property for over 50 years; equal sharing gives each family about 14½ acres, and Serah Mueni Muasa's 9 acres come from the Applicant's own sale. There was no evidence the Respondents would sell their portion, and success on appeal would restore the title, so absence of stay would not render the appeal nugatory.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay pending appeal, and its demonstration is indispensable

Court orders

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  1. 1.Application for stay of execution pending appeal dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court at Kilungu
MELC Case No. E020 of 2023
Jurisdiction invoked
Appellate jurisdiction over the Principal Magistrate's Court; application for stay of execution pending appeal

Relief refused

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Stay of execution of the judgment in MELC Case No. E020 of 2023 pending appeal, and restraint on interference with the register of Machakos/Ulu/71

The Applicant failed to demonstrate substantial loss; the appeal would not be rendered nugatory absent stay

p. 3

Costs

Dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As demonstration of substantial loss is the cornerstone for grant of stay pending appeal and the Applicant having not demonstrated such loss, I find that the application is devoid of merit. I proceed to dismiss the same with costs to the Respondents.
p. 3Disposition - dismissal of stay application for failure to demonstrate substantial loss
substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore, it is necessary to preserve the status quo.
p. 3Test for stay pending appeal (Mukuna v Abuoga)
The principles for grant of stay pending appeal are firstly that the Applicant has to bring the application without unreasonable delay. Secondly the Applicant has to demonstrate that he will sufier substantial loss if stay is not granted. Thirdly there has to be security given as may ultimately be binding upon the Applicant on the decree.
p. 2Three principles for stay 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, "Kaula v Muasa (Suing as the Administrator of the Estate of Ndinda Muasa - Deceased) & another (Environment and Land Appeal E020 of 2025) [2026] KEELC 3071 (KLR)", Case Analysis (2026). Notice of Motion dated 16th October, 2025 (appeal from MELC Case No. E020 of 2023, Kilungu Principal Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3071/eng@2026-05-21

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