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ELCPartially AllowedLand Case Appeal E012 of 2026

Ngala & 7 others v Habiba Investments Ltd

Environment and Land Court
21 September 2026
19,682 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~79 min to read original · ~4 min brief

The bottom line

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The ELC at Kwale paused enforcement of orders evicting businesses from a road reserve, but only if the appellants deposit Kshs. 500,000 within 30 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (Naikuni, J) determines two applications by the Appellants in an appeal against a ruling of Hon. Joy Mutimba (SRM) of 6th March 2026 in Kwale MCELC No. E009 of 2026, in which the trial court expunged the Appellants' Replying Affidavit filed out of time, treated the Respondent's injunction application as unopposed, granted injunctive orders and exclusive use of a road reserve adjacent to Kwale/Diani Beach Block/1548, and authorized police enforcement. The first application sought stay of execution/enforcement of those orders pending appeal; the second sought stay of the trial court proceedings. The court framed three issues: the Order 42 Rule 6 threshold for stay of execution, exceptional circumstances for stay of proceedings, and costs. On stay of execution, it found substantial loss established (displacement of businesses operating for some twenty years, not readily compensable in damages), no unreasonable delay (five days), but no security offered; it cured that deficiency with a conditional order requiring deposit of Kshs. 500,000/= within thirty days, failing which the stay lapses automatically. On stay of proceedings, it held the appeal arguable but found the Appellants guilty of repeated unexplained procedural default before the trial court and held the substratum of the appeal was not imperiled, dismissing that application. The trial court was permitted to continue with pre-trial directions and hearing, but no final judgment may be executed inconsistently with the conditional stay. Each party was to bear its own costs of the March application, with the June application's costs abiding the appeal. A mention was set for 5th November 2026.

Questions the Court framed

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

  1. 1.Whether the Appellants have satisfied the threshold set out under Order 42 Rule 6 of the Civil Procedure Rules, 2010 for the grant of stay of execution and/or enforcement of the orders of 6th March, 2026 pending the Appeal
  2. 2.Whether the Appellants have demonstrated the exceptional circumstances necessary for this Court to stay the further proceedings before the trial Court pending the Appeal
  3. 3.Who should bear the costs of the two applications

Key legal issues

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01

Substantial loss under Order 42 Rule 6(2)

Holding

Substantial loss was established: enforcement with police assistance would displace businesses operating for some twenty years before the appeal is tested, a loss not readily undone by damages

Reasoning

The court accepted that displacement of ongoing business operations before the propriety of the orders is tested on appeal is the mischief Order 42 Rule 6 guards against. The Respondent's countervailing prejudice from obstructed access was real but quantifiable and compensable, hence not of the same immediately irreversible character.

p. 32
02

Unreasonable delay

Holding

Filing the stay application five days after the impugned orders was not unreasonable delay; the second condition was satisfied

Reasoning

The impugned orders were issued on 6th March 2026 and the Notice of Motion with a Certificate of Urgency was filed on 11th March 2026. The court held that a five-day timeline cannot by any measure be characterized as unreasonable delay.

p. 32
03

Security for due performance of the decree

Holding

No security was offered, but the deficiency was cured by a conditional order requiring deposit of Kshs. 500,000/= within thirty days rather than outright refusal

Reasoning

The requirement is cumulative and cannot be dispensed with altogether. However, since the other two limbs were satisfied and unconditional dismissal would expose the Appellants to the very irreversible harm the doctrine averts, a conditional order was appropriate.

p. 32
04

Stay of proceedings pending appeal

Holding

Refused: although the appeal was arguable, the Appellants showed a pattern of unexplained procedural default and the substratum of the appeal was not imperiled by the trial continuing

Reasoning

The Respondent's uncontroverted evidence disclosed late filing of the Statement of Defence, failure to comply with Order 11, and further default on 12th June 2026, none explained. The feared prejudice was already neutralized by the conditional stay of execution, and pre-trial directions do not foreclose the questions in the Appeal.

p. 35
05

Costs of the two applications

Holding

Each party to bear its own costs of the 11th March 2026 application, with the costs of the 11th June 2026 application abiding the outcome of the appeal

Reasoning

Although costs follow the event, the two applications produced different outcomes - one substantially succeeded subject to conditions, the other failed - and both arise from the same underlying dispute, so awarding the Respondent the entirety of costs of both would not serve the interests of justice.

p. 36

Legal principles established

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  • The conditions under Order 42 Rule 6(2) are cumulative and conjunctive; absence of one affects the exercise of discretion
  • A deficiency in furnishing security may be cured by a conditional order rather than outright refusal where the other limbs are satisfied
  • Stay of proceedings is a more drastic remedy than stay of execution and must be exercised sparingly and judiciously
  • A litigant seeking stay of proceedings must approach the Court with clean hands and demonstrate diligence in prosecuting the proceedings sought to be preserved

Court orders

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  1. 1.Notice of Motion dated 11th March, 2026 allowed: stay of execution and/or enforcement of the orders issued on 6th March, 2026 in Kwale MCELC No. E009 of 2026 pending hearing and final determination of ELC Appeal No. E012 of 2026
  2. 2.Stay conditional upon the 1st to 8th Appellants jointly and/or severally depositing security of Kshs. 500,000/= in cash into a joint escrow interest-earning account in the names of both advocates, or by insurance bond or bank guarantee acceptable to the Respondent, within thirty (30) days
  3. 3.In default of deposit of security within the stipulated period, the stay shall automatically lapse and the orders of 6th March 2026 become forthwith enforceable
  4. 4.Notice of Motion dated 11th June, 2026 dismissed
  5. 5.Trial Court at liberty to proceed with pre-trial directions and hearing of Kwale MCELC No. E009 of 2026, save that no final judgment shall be executed against the Appellants inconsistently with the conditional stay pending the Appeal
  6. 6.Mention on 5th November, 2026 for confirming filing of Record of Appeal and its disposition before ELC No. 1, Kwale
  7. 7.Each party to bear its own costs for the Notice of Motion dated 11th March 2026, while the Notice of Motion dated 11th June 2026 shall abide the outcome of the appeal

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 at Kwale
Kwale MCELC No. E009 of 2026
Jurisdiction invoked
Order 42 Rules 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, Cap. 21; Article 50(1) of the Constitution; inherent jurisdiction

Relief refused

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Stay of proceedings in Kwale MCELC No. E009 of 2026 pending the Appeal

Appellants failed to demonstrate exceptional circumstances and sufficient cause; their own conduct before the trial Court showed repeated unexplained non-compliance, and the risk of the Appeal being rendered nugatory was addressed by the conditional stay of execution

p. 35

Costs

Each party to bear its own costs for the Notice of Motion application dated 11th March 2026, while the costs of the Notice of Motion dated 11th June 2026 shall abide the outcome of ELC Appeal No. E012 of 2026 (though paragraph 118 states the reverse allocation).

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.

That the Notice of Motion application dated 11th March, 2026 be and is hereby allowed on the following terms:
p. 36Disposition - stay of execution granted
That the Notice of Motion application dated 11th June, 2026 be and is hereby dismissed.
p. 36Disposition - stay of proceedings refused
In default of the deposit of security within the stipulated period, the stay granted herein shall automatically lapse without further reference to this Court, and the orders issued on 6th March 2026 shall become forthwith enforceable;
p. 36Conditional stay and default clause
The conditions imposed by Order 42 Rule 6 (2) are cumulative.
p. 31Cumulative conditions for stay of execution
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented.
Substantial loss as cornerstone of stay jurisdiction (quoting Kenya Shell)
the Appellants have not demonstrated the exceptional circumstances and sufficient cause required to warrant the more drastic remedy of a stay of proceedings
p. 35Stay of proceedings refused
It is so ordered accordingly.
p. 37Closing of final orders

Issues in the judgment

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material

Costs allocation in paragraph 118 is reversed in final order (e)

minor

Date of impugned orders inconsistently given as 6th May 2026 in one passage

minor

Section heading 'VII' used for three different sections

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, "Ngala & 7 others v Habiba Investments Ltd", Case Analysis (2026). Land Case Appeal E012 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21

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