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ELCAllowedNot stated in judgment (Notice of Motion dated 4th February 2026)· [2026] KEELC 3427 (KLR)

Pertet v Ngotiek & another (Being sued as legal representatives of Joseph Ngotiek) & 5 others (Environment and Land Case 744 of 2017) [2026] KEELC 3427 (KLR)

Environment and Land Court
28 May 2026
JOJudy Omange
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who lost at the Environment and Land Court can pause enforcement of the judgment pending appeal, if they can show real harm and put up security.

What this practically means

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Executive summary

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The Applicant, the 1st Defendant in a land suit decided by the Environment and Land Court at Kajiado on 4th December 2025, moved the court by Notice of Motion dated 4th February 2026 seeking stay of execution and enforcement of the judgment, decree and consequential orders pending appeal to the Court of Appeal. He asserted he had filed a timely appeal with memorandum and record of appeal, that the appeal was arguable, that the interim 45-day stay had lapsed, and that execution would cause substantial loss, evict him or alter the substratum of the dispute, rendering the appeal nugatory. The Respondent Plaintiff opposed, contending the application was incompetent, brought in bad faith and delayed enjoyment of the fruits of judgment; that substantial loss and security under Order 42 Rule 6 of the Civil Procedure Rules had not been demonstrated; and that the decree merely involved rectification of the Registry Index Map, reversible on appeal. She also argued the nugatory test applies only in the Court of Appeal. The court framed a sole issue: whether the Applicant had satisfied the conditions for stay pending appeal. Applying Order 42 Rule 6 and Butt v Rent Restriction Tribunal, it held substantial loss to be the cornerstone of such applications, noted the emotive nature of land in Kenya, and found the justice of the matter lay in preserving the subject matter while securing the Respondent's interests. Although the Applicant proposed no security, the court exercised its discretion to impose terms. The application was allowed: execution and enforcement of the judgment, decree and consequential orders of 4th December 2025 was stayed pending the appeal, conditional on the Applicant depositing Kshs 1,000,000 in a joint interest-earning account in the names of counsel within forty-five days, failing which the stay lapses automatically. Judgment delivered virtually at Kajiado on 28th May 2026 by Judy Omange, Judge. No costs order was made.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6

Holding

Stay granted; substantial loss and interests of justice were found in favour of preserving the suit property, with security imposed as a condition.

Reasoning

The court accepted that execution could evict the Applicant or interfere with the suit property, altering the substratum of the appeal and rendering it nugatory. Balancing the successful litigant's right to enjoy the fruits of judgment against the emotive nature of land and the statutory right of appeal, the court held the justice of the matter lay in preserving the subject matter while securing the Respondent's interests through ordered security of Kshs 1,000,000.

p. 3
02

Whether failure to propose security in the application is fatal

Holding

No; the court may impose appropriate security terms of its own motion under Order 42 Rule 6(2)(b).

Reasoning

The Respondent argued that the Applicant's failure to offer security rendered the application fatally defective. The court rejected this rigid view, holding that in balancing competing interests it retains discretion to order provision of security as a condition for stay, and proceeded to direct a deposit of Kshs 1,000,000 in a joint interest-earning account within 45 days.

p. 3

Legal principles established

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  • The grant of a stay of execution is a matter of judicial discretion to be exercised judiciously on the facts of each case.
  • Substantial loss is the cornerstone of an application for stay pending appeal in the Environment and Land Court.
  • The court retains discretion to impose appropriate security terms even where the applicant did not propose specific security.

Court orders

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  1. 1.There shall be a stay of execution and enforcement of the Judgment, Decree and all consequential orders issued on 4th December 2025 pending the hearing and determination of the Appeal at the Court of Appeal.
  2. 2.The Applicant shall deposit security in the sum of Kshs 1,000,000 in a joint interest earning account in the names of counsel for the parties within forty five days from the date hereof, failing which the stay shall automatically lapse.
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (court appealed from may order stay of execution)

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, "Pertet v Ngotiek & another (Being sued as legal representatives of Joseph Ngotiek) & 5 others (Environment and Land Case 744 of 2017) [2026] KEELC 3427 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 4th February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3427/eng@2026-05-28

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