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ELCPartially AllowedNotice of Motion dated September 17, 2024 (arising from a Petition dated 12th February, 2020 converted by consent into a Plaint)

Dawat-E Hadiya (Kenya) Registered Trustees v Kaingu & 4 others (All sued in a representative capacity also, on behalf of other 104 persons in occupation of the petitioners parcel of Land) (Environment & Land Case 7 of 2021) [2025] KEELC 40 (KLR)

Environment and Land Court
17 January 2025
5,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Over 100 Mombasa land occupants won a stay of their eviction pending appeal, provided they deposit Kshs. 1.5 million as security within 45 days.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Naikuni J) on the Defendants/Applicants' Notice of Motion dated September 17, 2024, seeking stay of execution of the judgment delivered on June 20, 2024, which allowed the Plaintiff/Respondent's suit (originally a constitutional petition converted by consent into a plaint) for eviction of the Applicants and 104 other occupiers from Plot No. MN/I/1392, CR No. 1884 at Bombolulu, Mombasa. The Applicants had filed a notice of appeal the same day and lodged a record of appeal in Civil Appeal No. E155 of 2024 (Mombasa). They argued that the 30-day stay granted at judgment had lapsed and that Section 152E of the Land Act would permit eviction, rendering the appeal nugatory. The Respondent, a registered trustee and absolute owner of the land, opposed, contending the applicants had not met the stay principles, had not offered security, and sought in the alternative security of Kshs. 7,000,000. Framing three issues, the court restated the conjunctive conditions under Order 42 Rule 6(2): substantial loss, absence of undue delay, and security. It found substantial loss proved, held the application was filed expeditiously despite an interval of about 2 months and 28 days, and, although no security had been offered, exercised its discretion to impose a deposit of Kshs. 1,500,000 in a joint escrow account of the parties' advocates within 45 days. The stay was granted pending appeal, with automatic dismissal of the application if the deposit was not made. There were no orders as to costs.

Questions the Court framed

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

  1. 1.What are the fundamental legal parameters for granting the orders of stay of execution pending an appeal?
  2. 2.Whether the Notice of Motion application dated 17th September, 2024 seeking to stay execution of the judgment and subsequent decree/Order issued on 20th June, 2024 pending hearing and determination of the Appeal is merited?
  3. 3.Who will bear the costs of the Notice of Motion application dated 17th September, 2024?

Key legal issues

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01

Parameters for granting stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

Stay is a discretionary remedy whose statutory conditions are substantial loss, application without unreasonable delay, and provision of security; the overriding objective in Sections 1A and 1B of the Civil Procedure Act also guides the discretion.

Reasoning

The court set out the three conjunctive pre-requisites under Order 42 Rule 6(2) and drew on Court of Appeal authority including Butt v Rent Restriction Tribunal, Kenya Shell Ltd v Benjamin Karuga Kigibu, and Consolidated Marine v Nampijja. It held that substantial loss is the cornerstone, that the purpose is preservation of the appeal's substratum, and that Sections 1A and 1B of the Civil Procedure Act require the court to give effect to the overriding objective in exercising the discretion.

p. 6
02

Whether the Applicants demonstrated substantial loss and absence of undue delay

Holding

The Applicants proved substantial loss through threatened eviction from the suit land, and although filed about 2 months and 28 days after judgment, the application was held to have been made timeously and without undue delay.

Reasoning

The court found that eviction of the occupiers would occasion substantial loss rendering the appeal nugatory, particularly given the 3-month eviction timeline under Section 152E of the Land Act had elapsed. On delay, it noted the notice of appeal was filed on the day of judgment, the record and memorandum of appeal were filed promptly, and the delay was occasioned by the supply of certified proceedings; it therefore held the application was filed expeditiously.

p. 8
03

Security for due performance of the decree where the appeal concerns land ownership rather than a money decree

Holding

Though the Applicants made no provision for security, the court exercised its discretion to impose a cash deposit of Kshs. 1,500,000 into a joint escrow account as security, finding the ownership-based appeal did not necessarily call for security of costs.

Reasoning

The court noted the mandatory requirement of security under Order 42 Rule 6(2)(b) but observed the suit property was not equated monetarily. Relying on Aron C. Sharma v Ashana Raikundalia and Gianfranco Manenthi v Africa Merchant Assurance Company Ltd, it held security is meant to guarantee due performance of the decree and that the court can determine its form. It directed the deposit into an interest-earning joint escrow account, with automatic dismissal of the application upon default.

p. 10

Legal principles established

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  • The three conditions in Order 42 Rule 6(2) for granting stay of execution pending appeal - substantial loss, no unreasonable delay and security - are conjunctive and must all be met simultaneously.
  • The purpose of stay of execution pending appeal is to preserve the subject matter in dispute so the appeal is not rendered nugatory.
  • Security under Order 42 Rule 6 is to guarantee due performance of the decree, not to punish the judgment debtor, and its form is for the court to determine.

Court orders

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  1. 1.The Notice of Motion application dated September 17, 2024 is found to have merit and is allowed subject to fulfilment of the stated pre-conditions.
  2. 2.An order of stay of execution of the decree arising from the Judgment delivered on 20th June, 2024 pending the hearing and determination of the appeal in the Court of Appeal (Civil Appeal No. E155 of 2024, Mombasa).
  3. 3.The Plaintiffs/Applicants to deposit Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000.00/=) within 45 days from the date of the Ruling into a Joint Escrow bank account in the names of the law firms of Messrs. Kenga & Company Advocates and Khalid Salim & Company Advocates as security for due performance of the decree, awaiting the outcome of the appeal.
  4. 4.Failure to comply with the deposit condition, the Notice of Motion dated September 17, 2024 will automatically stand dismissed without further reference to the court.
  5. 5.No orders as to costs.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Orders 42 Rule 6 & 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3A & 75 of the Civil Procedure Act, Cap. 21

Relief refused

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Costs of the application

The court reserved its discretion and made no award of costs despite the general principle that costs follow the event.

p. 10

Costs

No orders as to costs - each party to bear their own costs of the application.

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 this Honourable Court do hereby issue an order to stay the execution of its decree arising from the Judgment of this Honorable Court delivered on 20th June, 2024 pending the hearing and determination of the appeal in the Court of Appeal.
p. 10Final orders - stay of execution granted
That an order be made for the Plaintifis/Applicants to deposit a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1, 500, 000.00/=) within the next fourty five (45) days from the date of the delivery of this Ruling into the Joint Escrow bank Account
p. 10Final orders - security deposit condition
That failure to comply with the condition under Clause (c) above, the Notice of Motion dated September 17, 2024 application dated will automatically stand dismissed without any further reference to this Honourable Court whatsoever.
p. 11Final orders - automatic dismissal on default
That there shall be no orders as to costs.
p. 11Final orders - costs
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.
p. 7Test for substantial loss
the three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive.
p. 10Conjunctive nature of Order 42 Rule 6(2) conditions

Issues in the judgment

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material

The disposition order (c) describes the party to deposit security as 'Plaintifis/Applicants' although the security obligation was intended for the Defendants/Applicants as stated elsewhere in the ruling.

minor

The judgment repeatedly refers to 'James Wangalwa & Another vs. Agnes Naliaka Cheseto (supra)' but that case was never cited earlier in the text.

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, "Dawat-E Hadiya (Kenya) Registered Trustees v Kaingu & 4 others (All sued in a representative capacity also, on behalf of other 104 persons in occupation of the petitioners parcel of Land) (Environment & Land Case 7 of 2021) [2025] KEELC 40 (KLR)", Case Analysis (2025). Notice of Motion dated September 17, 2024 (arising from a Petition dated 12th February, 2020 converted by consent into a Plaint). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/40/eng@2025-01-17

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