Kivumbu (Suing as the Administrator of the Estate of Kivumbu Ndiwa - Deceased) v Mwau (Environment and Land Appeal E012 of 2024) [2025] KEELC 5154 (KLR)
The bottom line
#Kenya's Environment and Land Court paused a land dispute's execution and proceedings because the appellant's cancer explained his filing delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there should be stay of execution pending appeal
- 2.Whether there should be stay of proceedings in Makindu ELC No. E052 of 2023
Key legal issues
#Whether the application for stay of execution was brought without unreasonable delay
The delay of almost four months was sufficiently explained by the Applicant's prostate cancer, evidenced by a medical report.
The impugned ruling was delivered on 12th August 2024 and the application filed on 10th December 2024. Although this was a delay of almost four months, the Applicant explained that he was suffering from prostate cancer and annexed a medical report. Relying on the Cecilia Wanja Warrem case, the court found the delay explained and not unreasonable.
Whether the Applicant demonstrated substantial loss
Substantial loss was demonstrated: permanent houses on the disputed portion, and the Respondent had already fenced off part of the compound in execution.
The Applicant showed he has permanent houses on the disputed land and that the Respondent had fenced off part of his compound pursuant to the Makindu SPM Court orders. If execution proceeded, police officers would demolish the houses, which would amount to substantial loss rendering the appeal nugatory.
Whether stay of proceedings in the subordinate court should issue
Applying the Ramogi principles, the appeal was arguable and all principles were met, justifying stay of proceedings.
The court applied the six principles in William Odhiambo Ramogi for stay of proceedings: pending appeal, explanation for not seeking stay in the higher court, arguable appeal, appeal rendered nugatory, exceptional circumstances, and expeditious filing. The court found the appeal arguable and all principles satisfied, without analysing the merits of the appeal itself.
Legal principles established
#- There is no set rule as to what constitutes inordinate delay; it depends on the circumstances of the case, and delay sufficiently explained is not unreasonable.
- The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while balancing the interests of both parties.
Court orders
#- 1.Stay of orders issued in Makueni ELC E052 of 2023 vide the ruling dated 12th August, 2024, pending the hearing and determination of the appeal
- 2.Stay of proceedings in Makindu ELC No. 52 of 2023, pending the hearing and determination of the appeal
- 3.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Makindu SPM Court (ELC)
- ELC No. E052 of 2023
- Jurisdiction invoked
- Appellate jurisdiction over appeal from the subordinate court; application under Order 42 Rule 6(2) of the Civil Procedure Rules
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 therefore find that the delay is not unreasonable and has been suficiently explained.
I therefore find that the Applicant's application has merits. I allow it in terms of prayer 3, 4 and 5.
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.
Issues in the judgment
#The stay is sought of orders 'issued in Makueni ELC E052 of 2023 vide the ruling dated 12th August, 2024', but the ruling impugned elsewhere in the judgment is described as emanating from Makindu SPM Court ELC No. E052 of 2023; the case number and forum are inconsistently stated.
The Applicant's earlier suit is referred to as 'Makueni ELC No. E008 OF 2023' in the body, but the Respondent's grounds of opposition describe a similar application in 'Makueni ELC No. E008 of 2023 (Hallan Mutua Kivumbu –vs- Francis Kimilu Mwau & Chief Land Registrar Makueni County)' naming the same parties, suggesting possible confusion between the two files.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kivumbu (Suing as the Administrator of the Estate of Kivumbu Ndiwa - Deceased) v Mwau (Environment and Land Appeal E012 of 2024) [2025] KEELC 5154 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5154/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.