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ELCDismissedELC Appeal No. E021 of 2026

Makau v Munyao & another (Environment and Land Appeal E021 of 2026) [2026] KEELC 4919 (KLR)

Environment and Land Court
30 July 2026
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who appealed a failed preliminary objection could not pause the trial or block his brothers from the disputed land, because appeals do not automatically freeze cases.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Obaga J) determines a notice of motion dated 2nd July 2026 in which the Appellant, Boniface Francis Makau, sought a stay of proceedings in Makueni ELC E002 of 2026 and an injunction restraining the Respondents, his younger brothers, from interfering with land parcels Makueni/Kasunguni/1539, 1549 and 1551 pending his appeal. The appeal challenges a ruling of 25th May 2026 in which the trial magistrate dismissed the Appellant's preliminary objection on locus standi, holding that the Respondents' claim rests on ancestral/customary trust and raises contested facts requiring ascertainment at trial. The Respondents oppose the application, asserting their claim is founded on customary trust, which does not require letters of administration, and that the Appellant obtained title deeds fraudulently. The court framed two issues: whether the thresholds for stay of proceedings and for an injunction were met, requiring in each case a strong arguable case and a prospect of the appeal being rendered nugatory. On stay, the court applied the principles in Re Global Tours and Travel Ltd and found none demonstrated. On injunction, the court found no prima facie case and held that the appeal would not be rendered nugatory if the trial proceeded. The application was dismissed with costs to the Respondents. The substantive suit and counterclaim remain pending before the trial court.

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 stay of proceedings
  2. 2.Whether the Applicant has met the threshold for grant of injunction

Key legal issues

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01

Stay of proceedings pending appeal

Holding

Refused; the Applicant did not meet the Re Global Tours and Travel Ltd threshold

Reasoning

The court adopted the test in Re Global Tours and Travel Ltd for stay of proceedings, holding it is a discretionary remedy granted sparingly. The Applicant failed to demonstrate any of the enumerated grounds, and the court found no basis to halt the trial court proceedings pending the appeal against dismissal of his preliminary objection.

p. 4
02

Injunction pending appeal

Holding

Refused; no prima facie case and no nugatory appeal demonstrated

Reasoning

Applying the twin requirements of a prima facie case and the appeal being rendered nugatory, the court found the Applicant, who relies on his registration as proprietor challenged on grounds of customary trust and fraud, had not established a prima facie case, and that the appeal would survive the trial court hearing.

p. 4

Legal principles established

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  • Stay of proceedings is a discretionary remedy granted sparingly, on the grounds set out in Re Global Tours and Travel Ltd
  • An applicant for stay of proceedings or injunction must demonstrate a strong arguable case and that the appeal will be rendered nugatory absent the orders

Court orders

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  1. 1.The notice of motion dated 2nd July 2026 seeking stay of proceedings and injunction is dismissed
  2. 2.Costs of the application to the Respondents

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (Makueni ELC E002 of 2026)
ELC E002 of 2026
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over the appeal against the ruling dismissing the Appellant's preliminary objection

Relief refused

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Stay of proceedings in Makueni ELC E002 of 2026 pending appeal

Applicant did not demonstrate the grounds for stay set out in Re Global Tours and Travel Ltd

p. 4

Injunction restraining interference with Makueni/Kasunguni/1539, 1549 and 1551

No prima facie case demonstrated and the appeal would not be rendered nugatory if the trial proceeds

p. 4

Costs

Application 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.

Stay of proceedings is a discretionary remedy which is granted sparingly.
p. 4stay of proceedings threshold
I therefore find that the Applicant’s application is devoid of merit. The same is dismissed with costs to the Respondents. It is so ordered.
p. 4disposition

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, "Makau v Munyao & another (Environment and Land Appeal E021 of 2026) [2026] KEELC 4919 (KLR)", Case Analysis (2026). ELC Appeal No. E021 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4919/eng@2026-07-30

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