AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMachakos ELC Case Number E096 of 2021 (application dated 16th December 2025)· [2026] KEELC 4044 (KLR)
Matingo & another v Mutisya & 2 others (Environment and Land Case E096 of 2021) [2026] KEELC 4044 (KLR)
AI-assisted case brief
·~7 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court paused eviction proceedings because the landowners' appeal was arguable and eviction would make winning the appeal pointless.
What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Machakos on an application dated 16th December 2025 by the 2nd and 3rd Defendants seeking stay of execution of the judgment of Hon. Christine Ochieng delivered on 18th September 2025 in Machakos ELC Case Number E096 of 2021, in which the court declared that land parcel Mitaboni/Mitaboni/2555 was held in trust for the late Mbai Maingi and ordered dissolution of the trust, cancellation of title and eviction of the Applicants. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. The Applicants argued that execution was looming despite their having lodged an appeal, Nairobi Court of Appeal Case Number E1076 of 2025, and that eviction would render the appeal nugatory, depriving them of land they had occupied for decades. The Respondents objected that the notice of appeal was invalid for non-payment of fees and that the application should have been filed in the Court of Appeal. The court restated the settled conditions for stay under Order 42 rule 6, drawing on Reliance Bank Ltd vs Norlake Investments, Chris Munga N. Bichange, Mohamed Salim and Carter & Sons Ltd. It found no unreasonable delay, an arguable appeal, and a risk that the appeal would be rendered nugatory given the Applicants' continued possession of the suit land. The court granted leave to the incoming advocates, stayed execution pending the Court of Appeal appeal, and ordered costs of the application to be in the cause.
Key legal issues
#01
Whether the conditions for grant of stay of execution under Order 42 rule 6 were met
Holding
The court found the application merited and granted stay pending appeal
Reasoning
The court applied the settled principles from Reliance Bank and Chris Munga N. Bichange. It found no laches since judgment was delivered on 18th September 2025 and the application dated 16th December 2025. The Applicants were in possession of the suit land and at risk of eviction, which would render the appeal nugatory, and the memorandum of appeal raised arguable grounds.
p. 4
Legal principles established
#- An appeal does not operate as an automatic stay of execution; the applicant must satisfy the conditions of Order 42 rule 6 - substantial loss, no unreasonable delay, and security
- An applicant for stay must demonstrate both that the appeal is arguable and that, if successful, it would be rendered nugatory without stay
Court orders
#- 1.The firm of B.M Mung'ata & Company Advocates granted leave to come on record for the 2nd and 3rd Defendants/Applicants
- 2.Stay of execution of the orders issued by Hon. Christine Ochieng on 18/09/2025 in Machakos ELC Case Number E096 of 2021 pending hearing and determination of Nairobi Court of Appeal Case Number E1076 of 2025
- 3.Costs of the application to be in the cause
- On appeal from
- Senior Principal Magistrates' Court / ELC (Machakos), Hon. Christine Ochieng
- Machakos ELC Case Number E096 of 2021
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act; Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matingo & another v Mutisya & 2 others (Environment and Land Case E096 of 2021) [2026] KEELC 4044 (KLR)", Case Analysis (2026). Machakos ELC Case Number E096 of 2021 (application dated 16th December 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4044/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.