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ELCPartially AllowedNot stated in judgment· [2025] KEELC 3439 (KLR)

Kiarie v Joreth Limited & 2 others (Environment & Land Case 658 of 2012) [2025] KEELC 3439 (KLR)

Environment and Land Court
30 April 2025
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that filing an appeal doesn't automatically stop a judgment from being enforced, and ordered the transfer of disputed land to the plaintiff.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Hon. Mbogo C.G., J) determined two competing post-judgment applications arising from a judgment delivered on 27th February 2019 in favour of the plaintiff, with a decree issued on 2nd May 2019 in respect of land parcel LR. No. 13330/47. By notice of motion dated 17th December 2024, the plaintiff sought leave for the firm of Angote Lornah LLP to come on record in place of Gichahi & Co. Advocates and an order that the Deputy Registrar execute the transfer documents in place of the defendants, his former advocate having inadvertently omitted to request the Deputy Registrar to sign the transfer forms. The 2nd and 3rd defendants, who had lodged an appeal to the Court of Appeal, responded with a notice of motion dated 29th January 2025 seeking stay of execution pending appeal under Order 42 Rule 6(2), arguing the plaintiff might transfer the property to third parties and render the appeal nugatory. The court held the stay application failed: it was brought six years after judgment with no explanation, no substantial loss was demonstrated and no security was offered, and stay is not automatic merely because an appeal lies. Conversely, since no stay of the judgment and decree existed, the plaintiff was entitled to the fruits of his judgment. The court granted leave for the new advocates, directed the Deputy Registrar to execute the transfer documents, dismissed the stay application with costs to the plaintiff, and awarded the plaintiff costs of his own application. The plaintiff's application was thus allowed and the defendants' application dismissed.

Key legal issues

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01

Whether the 2nd and 3rd defendants met the conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

They did not. The court found the application hopeless and totally lacking merit because of inordinate delay (six years after judgment), failure to demonstrate substantial loss, and no security offered for due performance of the decree.

Reasoning

Order 42 Rule 6(2) requires substantial loss, absence of undue delay and security. The defendants conceded they saw no need to seek stay earlier because there was no threat of execution until the plaintiff applied to execute. The court treated the delay as evidence of intent to frustrate the plaintiff and held that an intended appeal alone does not warrant stay.

p. 4
02

Whether the Deputy Registrar should be ordered to execute transfer documents in place of the defendants

Holding

Yes. Judgment having been delivered in favour of the plaintiff and no stay being in place, the court allowed the plaintiff's application and directed the Deputy Registrar to execute the transfer documents to enable registration of the plaintiff as proprietor of LR. No. 13330/47.

Reasoning

The court noted the former advocate inadvertently omitted to request the Deputy Registrar to sign the transfer forms, and that the defendants were bent on preventing the plaintiff's registration. Applying the overriding objective, and absent any stay orders, the court held the plaintiff should realize the fruits of his judgment.

p. 5

Legal principles established

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  • The pendency of an appeal does not automatically entitle a judgment debtor to a stay of execution; the conditions under Order 42 Rule 6(2) must be demonstrated
  • Where no orders staying judgment and decree exist, a successful litigant is entitled to enjoy the fruits of his judgment

Court orders

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  1. 1.The firm of Ms. Angote Lornah LLP granted leave to come on record for the plaintiff in place of Gichahi & Co. Advocates
  2. 2.The Deputy Registrar of the court ordered and directed to execute all necessary transfer documents in place of the defendants to enable the plaintiff be registered as proprietor of land parcel LR. No. 13330/47
  3. 3.Notice of motion dated 29th January 2025 dismissed with costs to the plaintiff/applicant
  4. 4.Plaintiff/applicant awarded costs of the notice of motion dated 17th December 2024
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 15, Order 42 Rule 6(2) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Kiarie v Joreth Limited & 2 others (Environment & Land Case 658 of 2012) [2025] KEELC 3439 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3439/eng@2025-04-30

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