Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 1st July 2025, arising from appeal against Kakamega MC L& E No. E03 of 2023

Moina v Mukweya (Environment and Land Appeal E052 of 2025) [2025] KEELC 5526 (KLR)

Environment and Land Court
22 July 2025
ANA. Nyukuri
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kakamega refused to stop an eviction pending appeal because the applicant proved no evidence of living on the land and filed his adverse possession claim in the wrong court.

What this practically means

#

Executive summary

#
By a notice of motion dated 1st July 2025, the appellant sought stay of execution of the judgment of Hon. Angeline Odawo, PM delivered on 21st May 2025 in Kakamega MC L& E No. E03 of 2023, which had ordered him to vacate the suit property, alternatively a temporary injunction against eviction pending appeal, plus costs. The applicant claimed he was born on the suit property in 1980 and had lived on part of it, within his late father's compound straddling parcels Idakho/Shivakala/1024 and 1025, now partly comprised in Idakho/Shivakala/4082 which the respondent purchased in 2008 and was registered in 2022. The respondent opposed, asserting lawful title, that the applicant lived on parcel 1025, had never been in exclusive occupation, and had shown no substantial loss, irreparable harm, security, or delay-free application. The application was disposed of by written submissions. The single issue was whether the applicant met the threshold for stay of execution and temporary injunction pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The court held the applicant, relying on section 28(h) and (j) of the Land Registration Act, was in substance asserting adverse possession, a claim that lies only before the ELC under section 37 of the Limitation of Actions Act, so the appeal raised no triable issues. His occupation allegation was unproved contrary to section 109 of the Evidence Act. The application was dismissed with costs on 22nd July 2025.

Questions the Court framed

#

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

  1. 1.Whether the applicant has met the threshold for grant of orders of stay of execution and temporary injunction, pending hearing and determination of this appeal

Key legal issues

#
01

Whether the applicant satisfied the conditions for stay of execution and temporary injunction pending appeal

Holding

The application failed: no substantial loss or irreparable injury was demonstrated, and the appeal raises no triable issues

Reasoning

The applicant claimed he had occupied the suit property since 1980 and relied on section 28(h) and (j) of the Land Registration Act, amounting in substance to a claim of adverse possession. Such claims lie only before the ELC under section 37 of the Limitation of Actions Act, so no triable issue arises. His claim of occupation was denied by the respondent and unsupported by any evidence, so substantial loss and irreparable injury were not proved.

p. 5

Legal principles established

#
  • For a stay of execution pending appeal, the applicant must show substantial loss, that the application was made without unreasonable delay, and willingness to provide security
  • Claims for land under the doctrine of adverse possession can only be filed before the Environment and Land Court under section 37 of the Limitation of Actions Act
  • The burden of proving a fact lies on the person alleging its existence

Court orders

#
  1. 1.The application dated 1st July 2025 is dismissed with costs

The bench

#

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

AN
majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Kakamega
Kakamega MC L& E No. E03 of 2023
Jurisdiction invoked
Order 42 Rules 6(1), (2) and (6) of the Civil Procedure Rules - appellate jurisdiction to grant stay of execution and temporary injunction pending appeal from a subordinate court

Relief refused

#

Stay of execution of the judgment of Hon. Angeline Odawo, PM delivered on 21st May 2025, pending the hearing and determination of the appeal

The applicant failed to demonstrate substantial loss or irreparable injury, and his alleged claim by adverse possession would lie only in the ELC under section 37 of the Limitation of Actions Act

p. 5

Temporary injunction barring the respondent from evicting the applicant pending the appeal

No triable issues raised in the appeal; occupation not proved; an adverse possession claim would belong in the ELC

p. 4

Costs

Dismissed 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 applicant has failed to demonstrate substantial loss or irreparable injury if stay of execution and or temporary injunction are denied.
p. 5Failure to establish substantial loss
Ultimately, I find and hold that the application dated 1st July 2025 lacks merit and the same is hereby dismissed with costs.
p. 5Final orders - dismissal
even if such claim had been before the trial court, it would as a matter of course be struck out for want of jurisdiction and if allowed, it would be a nullity for having been granted without jurisdiction.
p. 4Jurisdiction over adverse possession claims
it appears that the applicant herein only filed defence with no counterclaim, which means that he has no claim against the respondent.
p. 4No counterclaim, no claim

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Moina v Mukweya (Environment and Land Appeal E052 of 2025) [2025] KEELC 5526 (KLR)", Case Analysis (2025). Notice of Motion dated 1st July 2025, arising from appeal against Kakamega MC L& E No. E03 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5526/eng@2025-07-22

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