British American Tobacco Limited v Mwita & 2 others (Environment and Land Appeal 007 of 2025) [2025] KEELC 3556 (KLR)
The bottom line
#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 Appellant has met the threshold for stay of execution pending hearing and determination of appeal
Key legal issues
#Whether the Appellant met the threshold for stay of execution pending appeal under Order 42 Rule 6(1)
The application failed because the Appellant did not first seek stay in the trial court, rendering the application premature and incompetent, though a 14-day temporary stay was granted to allow a proper application in the correct forum.
Order 42 Rule 6(1) permits the appellate court to consider stay, but the cited authorities require the applicant to first approach the trial court, which must pronounce itself one way or the other. The Appellant admitted it never moved the trial court for stay, believing the trial court lacked pecuniary jurisdiction. It also admitted jurisdiction in its draft defence. The application therefore could not stand.
Whether the Appellant was entitled to a temporary injunction
The injunction was refused because no change in the status of the land since judgment was proved and the relief was never sought in the subordinate court.
The court held that although it possessed the power to grant interim injunctions, the Appellant did not prove the status of the land had changed since delivery of judgment. It further noted the relief was new, never sought below, and that the Appellant's own draft defence admitted the trial court's jurisdiction, binding it by its pleadings.
Legal principles established
#- Before an applicant seeking stay pending appeal moves the appellate court, he or she must first apply to the trial court and the trial court must have pronounced itself on the application
- A party is bound by its pleadings and cannot turn around to deny jurisdiction it admitted
Court orders
#- 1.The application dated 5th March, 2025 is struck out with costs to the Respondent
- 2.A temporary stay of execution for only fourteen (14) days pending the filing of a proper application in the proper forum, in default the stay to lapse immediately afterwards
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate Court (ELC)
- E018 of 2024
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules
Relief refused
#Stay of execution pending appeal
The application was premature, incompetent and bad in law because the Appellant failed first to move the trial court for stay as required by Order 42 Rule 6(1)
Temporary injunction restraining interference with Bukira/Bwisaboka/301
The Appellant did not prove any change in the status of the land since judgment and had never sought injunctive relief in the subordinate court; further, its draft defence admitted the trial court's jurisdiction
Costs
Costs of the application awarded to the Respondent; the application was struck out with costs to the Respondent
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 application dated 5th March, 2025 is without merit and is hereby struck out with costs to the Respondent
the Appellant is given a temporary stay of execution for only fourteen (14) days pending the filing of a proper application in the proper forum, in default the stay to lapse immediately afterwards
grant of stay of execution remains a discretionary order that must consider the fact that the court ought not to make a practice of denying a successful litigant the fruits of their judgment
before an Applicant seeking stay pending appeal moves the appellate court for stay orders, he/she must first have applied for the orders before the trial court
Issues in the judgment
#The supporting affidavit date appears misprinted as 'sworn on 65th March, 2025'
Case number of the appeal before the ELC is not stated in the judgment, only the subordinate court case number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "British American Tobacco Limited v Mwita & 2 others (Environment and Land Appeal 007 of 2025) [2025] KEELC 3556 (KLR)", Case Analysis (2025). Not stated in judgment (Appellant's application dated 5th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3556/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.