Kenya Ports Authority v Nightshade Properties Limited & another

Ocer at the Appellant authority. He stated that this Court rendered judgment on 23 March 2021 in ELC Petition 33 of 2019, favoring the 1st Respondent regarding the parcel of land LR No. 28101, Mokowe, Lamu, which the Appellant was to acquire. The Court issued a mandamus order compelling the Appellant to convene a meeting within forty-ve days to determine the appropriate compensation owed to the 1st Respondent; failure to do so would result in an injunction restraining the Appellant from occupying the suit property. Upon appeal, the Court of Appeal upheld the mandamus order and directed that the 1st Respondent be compensated within one year from the date of judgment, 7 July 2023. 3. On 17 March 2025, the 1st Respondent led a complaint with the Land Acquisition Tribunal, alleging a violation of rights due to the protracted failure to determine and pay the compensation due. The tribunal entered judgment in favor of the 1st Respondent on 25 June 2025 and ordered the NLC to le a valuation report for the suit property within 14 days. NLC failed to comply, despite being granted additional time. On 28 July 2025, the tribunal issued nal orders awarding the 1st Respondent Kshs. 1,335,035,000/- as just compensation and directed that the sum be paid directly to the 1st Respondent for failure to comply with the superior courts’ orders and the tribunal’s directions. 4. Dissatised, the Appellant led the present appeal arguing inter alia that the tribunal misdirected itself and erred in law and fact in adopting a private valuation report presented by the 1st Respondent which had not undergone any verication process by the Respondents; that the said orders usurped the mandate of the 2nd Respondent; that the tribunal acted in excess of its statutory mandate without considering the possible adverse implications against public interest; that the tribunal failed to consider that the Appellant had previously deposited compensation funds for the suit property with the 2nd Respondent; that the order for direct payment is legally untenable on account of the provisions of section 21 of the Government Proceedings Act; and that the tribunal had no jurisdiction to reopen a matter that superior courts had conclusively determined. 5. The deponent stated that the Appellant stands to suer irreparable loss if execution of the nal orders issued by the tribunal proceeds. He urged that it is in the interest of justice that stay orders are issued pending the determination of the appeal. 6. In opposition to the motion, the 1st Respondent led a reply adavit, sworn by Mohamedraza S. Rashid, on 1 October 2025. The deponent stated that the application is misconceived, bad in law, and ought to be dismissed. He added that, having determined the issue of compensation, this Court cannot reopen it at this stage. He explained that the tribunal’s nal orders were issued only because the 2nd Respondent failed to determine the value of the suit property. 7. To the deponent, the Appellant does not stand to suer any irreparable loss, and it is the 1st Respondent who will be more aggrieved because they have been deprived of the use of their land without just compensation. He deponed that the appeal is a desperate attempt to avoid complying with court orders and urged the court to dismiss it with costs. 8. The 2nd Respondent relied on a replying adavit sworn by Joel Ombati Nyamweya, its director of valuation and taxation. He supported the application and deponed that, in compliance with the Court of Appeal's directive, the 2nd Respondent published a Notice of Inquiry in the Kenya Gazette (Notice No. 11269) on 25 August 2023 and conducted the inquiry on 11 September 2023 in Lamu, during which submissions were received, including evidence of overlapping claims and prior compensation. The Tribunal erred in law and fact by making the award prematurely, solely relying on the 1st Respondent's unilateral valuation without allowing the 2nd Respondent to complete its statutory mandate. He added that the 2nd Respondent has already requested the 1st Respondent to facilitate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18619/eng@2025-12-18 2

page 2 of 4

the valuation exercise and is awaiting such facilitation to complete the valuation. To him, no prejudice shall be occasioned to the 1st Respondent if a stay is granted. 9. The application was canvassed by way of written submissions, which I have keenly considered. The only issue for determination is whether the Appellant has satised the threshold for the grant of an order of stay of execution pending appeal. 10. The principles governing the grant of stay of execution pending appeal are well settled under Order 42 Rule 6 of the Civil Procedure Rules. An applicant must demonstrate that the application has been made without unreasonable delay, that substantial loss may result unless the order of stay is made, and that such security as the court orders for the due performance of the decree has been given. These conditions are conjunctive and must all be met. 11. The court, in the case of Muchiri v Rutere (Environment & Land Case 319 & 316 of 2017 (Consolidated)) [2023] KEELC 22377 (KLR) (14 December 2023) (Ruling), held that: “ Stay of execution pending appeal is a discretionary power bestowed upon this court by law. In Butt v Rent Restriction Tribunal (1982) KLR 417, the Court of Appeal gave guidance on how a court should exercise the said discretion and held that -; a. The power of the court to grant or refuse an application for a stay of execution is discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. b. The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reserve the judge’s decision. c. A Judge should not refuse a stay if there are good grounds for it granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings. d. The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances in this case were that there was a larger amount of rent in dispute and the appellant had an undoubted right of appeal. e. The court in exercising its power under order XLI rule 4(2) (b) of the Civil Procedure Rules, can Order Security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 12. Although the application was led without undue delay, the Appellant has failed to demonstrate substantial loss. The impugned award arose from prolonged non-compliance with binding orders of this Court and the Court of Appeal directing the determination and payment of just compensation. The mere fact that the decretal sum is substantial does not, of itself, constitute signicant loss. Further, the contention that a colossal amount of public funds will be expended illegally is unfounded, as the award was made pursuant to orders of a lawfully constituted tribunal. 13. The Appellant did not place any evidence before the Court to show that the 1st Respondent would be unable to refund the sum awarded should the appeal succeed. Further, the dispute concerns monetary compensation, which is capable of restitution, and the appeal will not be rendered nugatory if a stay https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18619/eng@2025-12-18 3

page 3 of 4

is declined. Further, the Appellant failed to oer any security for the due performance of the decree, a mandatory requirement under Order 42, Rule 6. 14. The Appellant’s argument that the tribunal acted without jurisdiction and usurped the mandate of the 2nd Respondent raises issues that go to the merits of the appeal and cannot, without more, justify the grant of stay. To grant a stay on that basis would be to pre-empt the appeal and shield the Appellant from the consequences of its continued inaction. 15. In the totality of the foregoing, I nd that the Appellant has failed to satisfy the threshold for the grant of an order of stay of execution pending appeal. 16. Accordingly, the Notice of Motion dated 18 August 2025 is without merit and is hereby dismissed with costs to the 1st Respondent. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 18, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Amakobe for the Appellant Ms. Gitonga for 1st Respondent Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18619/eng@2025-12-18 4

page 4 of 4