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ELCAllowedNot stated in the judgment excerpt

Petitioner v 1st-4th Respondents & Hosea Mutembei Peter (Interested Party) - Stay of Execution Application

Environment and Land Court
29 January 2025
3,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan quarry operator won a stay of execution freezing a ruling that cancelled its forest licence, provided it deposits Kshs.500,000 as security.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (C.K. Nzili, J), dated 29 January 2025, determines an application dated 16 December 2024 by the interested party, Hosea Mutembei Peter, seeking a stay of execution of the court's judgment of 4 December 2024, which among other reliefs nullified a Special User Licence (SUL) held by him and the 2nd respondent, pending an intended appeal to the Court of Appeal. The applicant relied on a notice of appeal and a draft memorandum raising arguable issues, notably the court's jurisdiction to cancel the SUL and whether quarrying in forests must align with the Climate Change Act. He evidenced substantial investment of about Kshs.50 million in a joint venture, payment of annual rent to October 2025, a bank guarantee of Kshs.1,000,000/= deposited with the 2nd respondent, and removal of the asphalt plant from the forest. The petitioner opposed, arguing the court was functus officio, that the appeal was not arguable, and that public interest in a clean environment for Imenti North Sub-County outweighed individual interests. The court applied the settled stay principles of arguability, substantial loss, timeliness and security, holding that the grounds were not frivolous, that the applicant had shown substantial loss, and that the respondents' opposition rested on written submissions unsupported by sworn evidence. It confirmed the interim conditional stay orders of 19 December 2024, granting a stay conditional on deposit of Kshs.500,000/= as security for costs, continued regulation of quarrying by NEMA and the 2nd and 3rd respondents under the performance bond, with the stay lapsing on any default or breach.

Questions the Court framed

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

  1. 1.Whether the application for stay of execution pending appeal should be granted
  2. 2.Whether the court is functus officio as submitted by the petitioner
  3. 3.Whether the intended appeal is arguable
  4. 4.Whether the applicant has demonstrated substantial loss
  5. 5.Whether sufficient security has been offered
  6. 6.Whether public interest in environmental protection outweighs the applicant's interests

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The grounds of the intended appeal are not idle or frivolous; the appeal raises the jurisdiction of the court to invalidate the SUL and the alignment of quarrying in forests with the Climate Change Act

Reasoning

The court perused the draft memorandum of appeal grounds against the judgment, including whether the SUL was unconstitutional for failure to involve the NLC and non-alignment with the Climate Change Act, and whether the court had jurisdiction to cancel the SUL. A single serious issue suffices; the grounds need not succeed on appeal.

p. 4
02

Whether substantial loss was demonstrated and whether public interest outweighs the applicant's interests

Holding

Substantial loss was demonstrated; the respondents did not refute on oath the safeguard measures, and the applicant's rights of appeal are not subservient to public interest in the circumstances

Reasoning

The applicant tendered evidence of compliance with SUL conditions (bank guarantee, annual rent) and removal of the asphalt plant. The respondents relied only on written submissions without sworn affidavits, which cannot amount to evidence. The 2nd respondent had unconditionally accepted the bank guarantee and rents during the petition.

p. 6
03

Whether sufficient security was offered

Holding

The applicant's offer of Kshs.500,000/= as security was accepted and made a condition of the stay

Reasoning

Security ensures the decree is not rendered nugatory and is not punitive. The court granted the stay conditional on deposit of Kshs.500,000/= and continued regulation of quarrying by NEMA and the 2nd and 3rd respondents under the performance bond, with the stay lapsing on default.

p. 6
04

Functus officio objection

Holding

The court did not accept the functus officio submission and proceeded to determine the stay application under Order 42 Rule 6 CPR

Reasoning

The petitioner argued the court was functus officio after delivering judgment. The court, however, applied Order 42 Rule 6 CPR, which permits a court from which an appeal is preferred to order stay of execution of its own decree or order for sufficient cause, and found the application merited.

p. 3

Legal principles established

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  • An arguable appeal need not succeed but is one that ought to be argued fully before the court
  • Written submissions cannot amount to evidence or pleadings before a court of law

Court orders

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  1. 1.Stay of execution of the judgment granted on condition that the Interested Party deposits Kshs.500,000/= as security for costs, to be held by the Court until the appeal is heard and determined
  2. 2.Quarrying activities of the Interested Party on the suit land to be strictly regulated by NEMA and the 2nd and 3rd Respondents as per the performance bond; in default of any conditions the stay orders shall lapse
  3. 3.Any party at liberty to apply in case of breach of the conditions of the stay orders or the Special User Licence (SUL)

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rules 19 and 32(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms), Practice and Procedure Rules 2013; Order 42 Rule 6 CPR

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.

The upshot is that I find that application with merit. The interim conditional stay orders granted on 19/12/2024 are confirmed
p. 6disposition - application allowed
Stay of execution of the judgment is hereby granted on condition that the Interested Party deposits Kshs.500,000/= as security for costs, to be held by the Court until the appeal is heard and determined.
p. 6final orders - conditional stay
In default of any of the above conditions, the stay orders shall lapse.
p. 6final orders - lapse on default
Written submissions cannot amount to evidence or pleadings before a court of law
p. 6evidence - submissions vs affidavits
An arguable appeal is not a frivolous one, as held in David Morton Silverstein v Atsango Chesoni [2002] eKLR. It need not succeed on appeal.
p. 4test for arguable appeal

Issues in the judgment

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minor

The case/petition number is not stated anywhere in the judgment text provided

minor

Citation in the judgment appears to contain a typographical error, reading [2014] for a 2024 Court of Appeal ruling

minor

Typographical errors in the judgment, e.g. 'functus oficio' and '91979]' for '[1979]'

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, "Petitioner v 1st-4th Respondents & Hosea Mutembei Peter (Interested Party) - Stay of Execution Application", Case Analysis (2025). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/233/eng@2025-01-29

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