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ELCDismissedMigori ELCA No. E008/2025 (Application dated 24th April 2025)· [2025] KEELC 5394 (KLR)

Ngita v Njagwa & 14 others (Environment and Land Appeal E008 of 2025) [2025] KEELC 5394 (KLR)

Environment and Land Court
9 July 2025
INDr. Iur Nyagaka
2,980 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a stay-of-execution application because the applicant skipped the required step of asking the trial court first.

What this practically means

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Executive summary

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The Applicant, judgment-debtor in ELC E028 of 2022 (judgment delivered 26th November 2024 in favour of the Respondents), applied by notice of motion dated 24th April 2025 for stay of execution of the judgment and decree pending appeal in Migori ELCA No. E008/2025, citing proclamation of his properties by auctioneers instructed by the Respondents. The Respondents did not file a response, and neither party filed submissions. The Court framed one principal issue: whether stay of execution pending appeal should be granted. Applying a plain reading of Order 42 Rule 6(1) of the Civil Procedure Rules, Justice Nyagaka held that an applicant for stay must first move the court appealed from; only after the trial court has granted or refused such an application may the aggrieved party approach the appellate court, whose function is to consider setting aside that order. Bypassing the subordinate court constitutes impermissible forum shopping, and the Court expressly declined to follow decisions permitting an election of forum, including Dennis Odhiambo and Gede Enterprises. Since the Applicant conceded he never moved the trial court, the application was premature, incompetent and bad in law. The Court further noted doubts about the validity of the appeal itself, filed over 30 days after the decision without leave, and observed that the application was lodged by KAN Advocates LLP although the appeal was filed by Amadi and Associates Advocates, with no Notice of Change of Advocates, rendering the applicant a stranger to the appeal. The application was dismissed with costs to the Respondents, and the matter set for mention on 28th October 2025.

Key legal issues

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Whether stay of execution can be granted directly by the appellate court without prior application to the trial court

Holding

No. Order 42 Rule 6(1) makes it obligatory for the applicant to first seek stay in the subordinate court; skipping that step is forum shopping and robs the appellate court of jurisdiction

Reasoning

The court gave Order 42 Rule 6(1) a plain, grammatical and textual reading. The filing of an appeal does not operate as a stay; the aggrieved party must first move the court appealed from. Whether that application is granted or refused, only then may the party apply to the appellate court to have the order set aside. Electing between the two forums is impermissible forum shopping. Authorities including Vipingo Ridge, Mwangi v Mokaya, Anyenda v Simidi and Pius Mbithi affirm this compulsory step.

p. 3
02

Validity of the appeal itself and the authority of the firm filing the application

Holding

The appeal was filed well beyond 30 days with no order granting leave to appeal out of time, casting doubt on its validity; and the application was filed by KAN Advocates LLP with no Notice of Change of Advocates, making the applicant a stranger to the appeal

Reasoning

The judgment was delivered on 26th November 2024 (with an anomalous decree dated 14th November 2024) but the Memorandum of Appeal was filed on 13th March 2025 without leave. Additionally, the appeal was filed by Amadi and Associates Advocates while the application was filed by KAN Advocates LLP, with no Notice of Change of Advocates. Strangers cannot be permitted to run other people's affairs, a defect not curable under Article 159(2)(d).

p. 6

Legal principles established

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  • An applicant for stay of execution pending appeal must first move the court appealed from before approaching the appellate court; the appellate court has no jurisdiction to entertain such an application unless the subordinate court has first pronounced itself on it
  • An application filed by a law firm with no Notice of Change of Advocates on record is filed by a stranger to the appeal and cannot be cured by Article 159(2)(d) of the Constitution

Court orders

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  1. 1.The application dated 24th April 2025 is dismissed with costs to the Respondents
  2. 2.The matter to be mentioned on 28th October 2025 for parties to indicate to the Court what they shall have considered to do next
On appeal from
Magistrates' Court (subordinate court)
ELC E028 of 2022
Jurisdiction invoked
Appellate jurisdiction over appeals from the subordinate court; application under Order 42 Rule 6 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, "Ngita v Njagwa & 14 others (Environment and Land Appeal E008 of 2025) [2025] KEELC 5394 (KLR)", Case Analysis (2025). Migori ELCA No. E008/2025 (Application dated 24th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5394/eng@2025-07-09

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