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ELCDismissedNot stated in judgment (notice of motion dated 4-5-2026, amended 17-6-2026)· [2026] KEELC 4157 (KLR)

Kakuzi PLC v National Land Commission & 8 others (Environment and Land Miscellaneous Case E026 of 2025) [2026] KEELC 4157 (KLR)

Environment and Land Court
6 July 2026
2,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pause a National Land Commission decision, ruling that all three legal conditions for a stay must be met together, and the applicant met only one.

What this practically means

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Executive summary

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The Applicant, whose application for leave to apply for judicial review was dismissed on 27-4-2026 and who had lodged an intended appeal to the Court of Appeal, moved the Environment and Land Court at Murang'a under Sections 3 and 19(2) of the Environment and Land Court Act and Order 42 rule 6 of the Civil Procedure Rules seeking maintenance of the status quo on the locus in quo as at 27th April 2026 and restraint of the 1st–4th Respondents from implementing recommendations in Gazette Notice Vol. CXXVII-NO.230 dated 14-11-2025 concerning historical land injustice claims NLC/HLI/006/2017, 168/2018, 580/2019 and 3718/2021. The 2nd, 3rd and 9th Respondents and the 6th and 7th Respondents opposed, arguing inter alia that the ruling of 27-4-2026 was a negative order incapable of stay, that the Court was functus officio, and that no preservatory orders could issue absent a pending suit. Gicheru J held that the Court had jurisdiction and was not functus officio, since the motion sought stay of execution rather than reopening the case and did not offend finality of litigation. However, of the three conjunctive conditions under Order 42 rule 6(2), only absence of unreasonable delay was satisfied: substantial loss was not proved, there being no tangible evidence of invasion of the suit land, and no security was offered. Further, with no suit pending after dismissal of leave, the Court could not lawfully grant stay. The motion was dismissed with costs to the Respondents on 6 July 2026.

Key legal issues

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01

Jurisdiction and functus officio

Holding

The Court has jurisdiction under Section 19(2) of the ELC Act read with Order 42 rule 6 to entertain the stay application, and is not functus officio since stay of execution does not reopen the case

Reasoning

The Court held its jurisdiction springs from Section 19(2) of the Environment and Land Court Act, which binds it to the Civil Procedure Act procedure. Because the motion seeks stay of execution pending appeal rather than reopening the dismissed leave application, it does not offend finality of litigation, and the Court retains power to consider stay despite having dismissed leave.

p. 4
02

Whether the Applicant satisfied the Order 42 rule 6(2) conditions

Holding

The Applicant satisfied only the no-unreasonable-delay condition, failing to prove substantial loss and to offer security; all three conditions must be met together

Reasoning

The Court found no tangible evidence linking Respondents to the alleged invasions of the suit land, so substantial loss was not proved. However, the motion was filed within ten days of the ruling of 27-4-2026, satisfying the delay condition. The Applicant made no mention of security or commitment to compensate the Respondents or expedite the appeal, failing the third conjunctive condition.

p. 5
03

Stay where no substantive proceedings pending

Holding

Having dismissed leave for judicial review, the Court could not lawfully issue further orders in the Applicant's favour; the ruling was a negative order and no stay can be granted

Reasoning

The Court reasoned that once it became certain leave ought not to issue, it could no longer lawfully issue orders in the Applicant's favour. With no suit pending and the ruling of 27-4-2026 amounting to a finding of no cause of action, granting stay would be improper and would in effect suspend the 1st Respondent's determination through a collateral process.

p. 5

Legal principles established

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  • The three conditions for stay of execution under Order 42 rule 6(2) are conjunctive and not disjunctive
  • No stay can issue where there is no pending suit, the court having dismissed leave for judicial review

Court orders

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  1. 1.The motion dated 4-5-2026 (amended 17-6-2026) is dismissed
  2. 2.Costs to the Respondents
Jurisdiction invoked
Section 19(2) of the Environment and Land Court Act (Act No. 19 of 2011); Order 42 rule 6 and Order 51 rule 1 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, "Kakuzi PLC v National Land Commission & 8 others (Environment and Land Miscellaneous Case E026 of 2025) [2026] KEELC 4157 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated 4-5-2026, amended 17-6-2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4157/eng@2026-07-06

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