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ELCPartially AllowedNot stated in the excerpt (Notice of Motion dated 24th March, 2025)

Lukwa (Suing on his Behalf as well as Legal Representative of the Estate of the Late Julius Muhambi Amayi (DCD)) v Imbusi (Enviromental and Land Originating Summons 10 of 2020) [2025] KEELC 4361 (KLR)

Environment and Land Court
21 May 2025
3,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Kakamega Environment and Land Court extended a widow's time to deposit costs, protecting her appeal, but refused fresh stay and status quo orders.

What this practically means

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Executive summary

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The applicant, Agnes Nyaloya Lukwa, moved the Environment and Land Court at Kakamega by Notice of Motion dated 24th March 2025 seeking enlargement of time to deposit taxed costs in compliance with a conditional stay of execution order made on 20th June 2024, a deeming order that her 20th March 2025 deposit of Kshs. 187,664/= constituted compliance, a halt to or lifting of execution, and stay of execution or maintenance of status quo pending her intended appeal against the judgment of 15th November 2023, which dismissed her adverse possession claim and allowed the respondent's eviction claim. The respondent opposed, citing inordinate and unexplained delay, the deemed withdrawal of the notice of appeal under Rule 83 of the Court of Appeal Rules, and forum shopping given a pending Court of Appeal application. The court framed three issues: good and sufficient cause for extension of time, status quo, and lifting of execution. Applying the Salat principles and Order 50 Rule 6, the court found the applicant's uncontroverted extreme poverty a satisfactory explanation, held the delay not inordinate, and extended time, deeming the deposit compliant. It declined a further stay as superfluous, since the conditional stay of 20th June 2024 remained in force, and declined status quo orders, holding it lacked jurisdiction in original jurisdiction to grant an injunction pending appeal. It also held only the Court of Appeal could deem the notice of appeal withdrawn. Costs of the application were awarded to the respondent, borne by the applicant.

Questions the Court framed

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

  1. 1.Whether there is good and sufficient cause for the court to enlarge time for the applicant's compliance with the orders of 20th June 2024
  2. 2.Whether orders of status quo should issue
  3. 3.Whether execution of the decree should be lifted pending intended appeal

Key legal issues

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01

Whether good and sufficient cause existed to enlarge time for deposit of taxed costs

Holding

Time was enlarged; the delay was not inordinate given the applicant's uncontroverted extreme poverty as a widow with no income, and her late deposit of the taxed costs demonstrated good faith

Reasoning

The court weighed the length of the delay against its explanation: costs were taxed on 3rd October 2024 and payable by 24th October 2024, the review application was dismissed on 27th February 2025, and the deposit was made on 20th March 2025. The respondent failed to show prejudice not atonable by costs. The proviso to Order 50 Rule 6 placed the application's costs on the applicant.

p. 5
02

Whether this court can deem the notice of appeal withdrawn under Rule 83 of the Court of Appeal Rules

Holding

It cannot; only the Court of Appeal has that mandate

Reasoning

Relying on Vishva Builders Limited v Moi University and 7 Others, the court held that the validity or competence of a notice of appeal is a matter for the Court of Appeal under Rule 83, since the record of appeal is filed in that court and its rules define 'court' as the Court of Appeal. The respondent may raise the issue there.

p. 5
03

Whether stay of execution pending appeal and maintenance of status quo should issue

Holding

Both prayers declined; the existing conditional stay of 20th June 2024 remains in force for its stated two-year period

Reasoning

The conditional stay order of 20th June 2024 had not been vacated, reviewed or set aside, so a further stay would be superfluous. A status quo order operates as a temporary injunction, which under Order 42 Rule 6(6) a court of first instance has no jurisdiction to grant pending an appeal to the Court of Appeal, having already determined the parties' rights on the merits.

Legal principles established

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  • Extension of time is an equitable discretionary remedy, not an entitlement; the applicant must explain the delay and show the interests of justice
  • Only the Court of Appeal has jurisdiction to deem a notice of appeal withdrawn under Rule 83 of the Court of Appeal Rules; the High Court cannot
  • A court of first instance that has conclusively determined the rights of the parties cannot grant an injunction or status quo order pending appeal, as that would be jurisprudential duplicity

Court orders

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  1. 1.The time within which the applicant was to deposit the taxed costs in compliance with the order of 20th June 2024 is extended
  2. 2.The sum of Kshs. 187,664/= deposited in court on 20th March 2025 is deemed to have been deposited in compliance with the conditional stay order made on 20th June 2024
  3. 3.The conditional stay order made on 20th June 2024 shall remain in force for the period stated in the said order
  4. 4.Costs of the application awarded to the respondent, to be borne by the applicant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion under Order 50 Rule 6 of the Civil Procedure Rules (power to enlarge time)

Relief refused

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Stay of execution of the decree pending appeal

Conditional stay orders of 20th June 2024 are already in force and have not been vacated, reviewed or set aside; a second stay order would be superfluous

p. 5

Maintenance of status quo on suit parcel Idakho/Shikulu/2339

Status quo orders are in the nature of a temporary injunction, and the court in original jurisdiction having decided the rights of the parties on the merits has no jurisdiction to grant an injunction pending appeal

p. 6

Costs

The costs of this application are awarded to the respondent and the same shall be borne by the applicant (by the proviso to Order 50 Rule 6 of the Civil Procedure Rules)

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 time within which the applicant was to deposit the taxed costs in court in compliance with the order of this court of 20th June 2024 is hereby extended.
p. 6Final orders - extension of time
The sum of Kshs. 187, 664/= deposited in this honourable court on 20th March 2025 representing the taxed costs is hereby deemed to have been so deposited in compliance with the court's conditional stay order made on 20th June 2024.
p. 6Final orders - deemed compliance
For avoidance of doubt, the conditional stay order made herein on 20th June 2024 shall remain in force for the period stated in the said order.
p. 6Final orders - conditional stay remains in force
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
p. 4Principles governing extension of time (as adopted from Salat)
this court cannot again order stay of execution of judgment, hence the prayer for stay pending appeal is superfluous and need not be granted for the second time
p. 5Stay pending appeal refused
a court cannot make conclusions on merit on the rights of parties in a suit and at the same time make a finding within the same suit that the losing party has a prima facie case with high chances of succeeding on appeal to warrant grant of an injunction; as that will mean that the court is speaking from both sides of the mouth, which in my opinion amounts to jurisprudential duplicity
p. 6No jurisdiction to grant injunction pending appeal in original jurisdiction

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, "Lukwa (Suing on his Behalf as well as Legal Representative of the Estate of the Late Julius Muhambi Amayi (DCD)) v Imbusi (Enviromental and Land Originating Summons 10 of 2020) [2025] KEELC 4361 (KLR)", Case Analysis (2025). Not stated in the excerpt (Notice of Motion dated 24th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4361/eng@2025-05-21

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