Kombo & 2 others v Uhutta Properties Limited & another; Rahasi & 4 others (Interested Parties); Maisha Mabati Mills Limited (Objector) (Environment & Land Case 89 of 2021) [2025] KEELC 3115 (KLR)
The bottom line
#A Kenyan land court refused to halt execution or review its judgment because the property titles were already cancelled, leaving the losing parties to pursue appeals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Defendant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules
- 2.Whether the 1st Defendant was entitled to review of the judgment under Section 80 of the Civil Procedure Act and Order 45
- 3.Whether an objector who was not a party to the suit may obtain stay of execution and setting aside of a judgment under Order 22 Rule 51 objection proceedings
- 4.Whether the court was functus officio having fully executed the decree
- 5.What orders should issue in the circumstances
Key legal issues
#Availability of stay of execution after the decree has been executed
Stay of execution pending appeal was refused because the titles had already been cancelled and the register amended pursuant to the decree; following Stephen Kipkebut, an executed cancellation cannot be stayed.
Order 42 Rule 6 requires substantial loss, no unreasonable delay and security. The green card showed entry number 9 made on 25/7/2024 confirming cancellation pursuant to the decree. Applying the binding Court of Appeal authority in Stephen Kipkebut, a cancellation that has already occurred cannot be stopped or stayed; ordering a stay would be locking the stable door after the horse has bolted.
Whether review lies where the applicant has already appealed
Having filed a Notice of Appeal to the Court of Appeal, the 1st Defendant had no audience before this court for review; further, the substantive orders sought (dismissal of the suit, allowing the counterclaim) belong on appeal, and no self-evident error on the face of the record was demonstrated.
Section 80 and Order 45 govern review. The court held that a party who has chosen appeal cannot seek review in the same court. Review is not an appeal. The alleged error - that the property belonged to the objector at filing - was not shown to be self-evident in the supporting affidavit and required no elaborate argument to establish under Nyamongo & Nyamongo and Velo [K] Limited.
Scope of Order 22 Rule 51 objection proceedings
An objector need not have been a party to the suit but must demonstrate a legal or equitable interest and give notice prior to payment out of proceeds or finalisation of execution; objection proceedings cannot be used to set aside a judgment.
The objector established a prima facie proprietary interest (title issued 10/9/2020), but admitted the judgment had been executed on 25/7/2024, so the requirement of notice prior to finalisation of execution was not met. Further, the application was in substance one to set aside the judgment, which cannot lie under objection proceedings; the proper course was an application for setting aside with a prior request for joinder.
The court's power to issue status quo orders suo motu
The court issued status quo orders preserving the parcel register as at 24/09/2024 for 45 days under its general jurisdiction to enable the Objector to move the court appropriately.
Relying on Thugi River Estate Limited v National Bank of Kenya Limited, status quo orders may issue through judicial process under the court's general or statutory jurisdiction even without a party's prayer, as a case management tool to freeze the existing state of affairs and preserve the register from further mutation.
Legal principles established
#- Once a decree cancelling title has been executed, orders of stay of execution are not available.
- A party that has opted to appeal to the Court of Appeal cannot simultaneously apply for review before the court that passed the decree.
- Substantive orders such as dismissal of a suit and allowing a counterclaim cannot be granted in review proceedings; that would amount to the court sitting on appeal over its own judgment.
- An objector need not have been a party to the suit, but objection proceedings under Order 22 Rule 51 cannot be used to set aside a judgment; the proper procedure is an application to set aside with joinder sought.
- A court may issue status quo orders of its own motion under its general jurisdiction to preserve the register pending appropriate proceedings.
Court orders
#- 1.The 1st Defendant's application dated 16th August 2024 is dismissed with costs to the Plaintiffs
- 2.The Objector's application dated October 1, 2024 is struck out with costs to the Plaintiffs
- 3.The Objector Maisha Mabati Rolling Mills Ltd may move the court appropriately within 45 days of the date of the ruling
- 4.Status quo orders issued to maintain the parcel register as at 24/09/2024; the Land Registrar Kwale to make no further entries in the register except this order or further orders of the court
- 5.The status quo orders shall subsist for 45 days, failing compliance with order 3 they lapse automatically
- 6.Leave to appeal the ruling is granted if required
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act and Orders 22, 42 and 45 of the Civil Procedure Rules 2010
Relief refused
#Stay of execution of the judgment and decree pending appeal (1st Defendant)
The decree had already been executed and the titles cancelled; stay orders are not available once execution has occurred
Review of the judgment dismissing the Plaintiffs' suit and allowing the counterclaim (1st Defendant)
Where a party has appealed, there is no audience for review before the same court; the orders sought were substantive and only available on appeal, and no self-evident error on the face of the record was shown
Stay of execution and setting aside of the judgment by the Objector under objection proceedings
The execution process had been finalised before the objection notice, and setting aside a judgment cannot be done under Order 22 Rule 51 objection proceedings
Costs
Costs of each application to the Plaintiffs (1st Defendant's application dismissed with costs to the Plaintiffs; Objector's application struck out with costs to the Plaintiffs)
Quotable passages
#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 1st Defendant's application dated 16th August 2024 is hereby dismissed with costs to the Plaintifis
The application dated October 1, 2024 is hereby struck out with costs to the Plaintifis.
The Objector Maisha Mabati Rolling Mills Ltd may move the court appropriately as they may deem necessary within 45 days of the date of this ruling.
Status quo orders do hereby issue to maintain the parcel register as at 24/09/2024 when the decree was registered.
I make a finding that the orders of stay of execution are not available the decree having been executed and the titles cancelled.
Setting aside a judgement cannot be made under objection proceedings.
To allow such orders under this forum would be tantamount to the court sitting on appeal of its own judgement.
Issues in the judgment
#The judgment refers to the applications as filed on '16/08/2025' and '3/10/2025' in paragraph 21, contradicting the earlier stated filing dates of 16th August 2024 and 1st October 2024.
The judgment cites 'section 45 of the Civil Procedure Act (sic)' as providing for review, whereas the review provision cited elsewhere is Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
The Objector's application is dated 1st October 2024 but the judgment in the analysis describes the objections application as dated '3/10/2025'.
The case name for the Mohamed Siaka Ali matter is given inconsistently as 'ELC No. 663 of 2005' in the plaintiff's list of authorities but the quoted ruling is described as 'Environment & Land Case 663 of 2005' decided in 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kombo & 2 others v Uhutta Properties Limited & another; Rahasi & 4 others (Interested Parties); Maisha Mabati Mills Limited (Objector) (Environment & Land Case 89 of 2021) [2025] KEELC 3115 (KLR)", Case Analysis (2025). Not stated in the judgment (main suit judgment delivered 24th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3115/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.