Owour & 3 others (2nd and 3rd Appellants Suing as the Administrators of the Estate of Dr. John Moroiyiani Ole Tameno alias John Tameno - Deceased) v Senior Chief, Kibiko Location & 2 others (Environment and Land Appeal E039 of 2024) [2025] KEELC 3704 (KLR)
The bottom line
#The Environment and Land Court refused to pause execution of a land judgment because the appellants could not show they would suffer substantial loss.
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 Appellants' application meets the requirements set out in Order 42 rule 6 of the Civil Procedure Rules
- 2.Whether the Appellants are entitled to a grant of temporary injunction pending appeal
- 3.Who should bear costs of this application
Key legal issues
#Whether the requirements of Order 42 rule 6(2) for stay of execution were met
The Appellants failed to establish substantial loss; the application did not meet the rule's conditions
The Court considered the affidavits and noted that the Ngong District Surveyor's report dated 2nd November 2021 concluded there were irregularities in the manner the suit properties came into existence. The Appellants' claim that they would lose their properties if the 2nd Respondent constructed a road was not sufficient to demonstrate substantial loss, and the application failed the Order 42 rule 6(2) threshold.
Whether temporary injunction pending appeal ought to issue
Refused; the appeal would not be rendered nugatory without the injunction
Applying the principles in Patricia Njeri & 3 others v National Museum of Kenya, the Court noted that injunction pending appeal is discretionary, refused where the appeal is frivolous or where greater hardship would result, and requires that refusal would render the appeal nugatory. The Court was not persuaded that refusal of the injunction would render the appeal nugatory, and declined to grant the injunction.
Legal principles established
#- An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and offer security
- An order of injunction pending appeal will not issue where the appeal is not rendered nugatory by its refusal
Court orders
#- 1.The Notice of Motion dated 20th August 2024 is dismissed
- 2.Costs of the application to the 2nd Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Ngong (Environment and Land)
- Ngong E.L.C. Case No. 41 of 2018
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (2010); Section 26(1) of the Land Registration Act, Cap 300; Article 159(2)(d) of the Constitution
Relief refused
#Stay of execution of the judgment and decree of 22nd August 2024 pending appeal
The Appellants failed to demonstrate substantial loss; the surveyor's report found irregularities in the creation of the suit properties
Temporary injunction on dealings in parcels KJD/Ngong/Ngong/11423, Ngong/Ngong/2890, 2895, 2896 and 2897 pending appeal
The appeal would not be rendered nugatory if the injunction is not granted
Costs
The application is dismissed with costs to the 2nd 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.
I find that the Appellants' application does not meet the conditions set out under Order 42 rule 6 (2) of the Civil Procedure Rules.
I have gone through the Afidavits in support and I am not convinced that the Appellants will sufier substantial loss.
I am not convinced that the appeal will be rendered nugatory if the orders of injunction are not granted.
In conclusion, I find no merit in this application and the same is dismissed with costs to the 2nd Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owour & 3 others (2nd and 3rd Appellants Suing as the Administrators of the Estate of Dr. John Moroiyiani Ole Tameno alias John Tameno - Deceased) v Senior Chief, Kibiko Location & 2 others (Environment and Land Appeal E039 of 2024) [2025] KEELC 3704 (KLR)", Case Analysis (2025). Ngong ELC Appeal (arising from Ngong E.L.C. Case No. 41 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3704/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.