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ELCAllowedMakueni MCELC Appeal (Notice of Motion dated 27th May, 2025)

Sammy v Ndambuki & 2 others (Environment and Land Appeal E009 of 2025) [2025] KEELC 5644 (KLR)

Environment and Land Court
30 July 2025
1,220 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that appealing a review ruling needs no court permission, and paused the case while the appeal proceeds.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni (Obaga J) determined a Notice of Motion dated 27th May, 2025 by the Appellant/Applicant, Family Bank Limited, seeking stay of proceedings in Makueni MCELC No. E015 of 2024 pending an appeal against a ruling delivered on 24th April, 2025 by Hon. P. Gesora, in which the trial magistrate allowed the Respondent's application for review and reinstated a suit previously dismissed after upholding a preliminary objection. The Applicant contended the magistrate committed a jurisdictional error by sitting on appeal over his own decision, and that the appeal would be rendered nugatory without a stay. The Respondent opposed, arguing the appeal was incompetent for want of leave (an appeal from a review not lying as of right), that the applicant had not met the stay threshold, and that the supporting affidavit was improperly sworn by an advocate on contested matters. The court framed two issues: whether leave to appeal was required, and whether the stay threshold was met. Holding that Order 43 Rule (1) permits appeals as of right from review rulings under Order 45 Rule (3), the court found the appeal competent. Applying the criteria in Global Tours & Travel Ltd (Ringera J) - the interest of justice, expeditious disposal, arguability of the appeal, judicial time and expedition - the court granted stay of proceedings. The objection to the advocate's affidavit failed as it raised only points of law and was not raised in the grounds of opposition. The application was allowed in terms of prayers 2, 3 and 4, including costs.

Questions the Court framed

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

  1. 1.Whether the Applicant required leave to file an appeal to this court
  2. 2.Whether the Applicant has met the threshold for grant of stay of proceedings

Key legal issues

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01

Whether leave was required to appeal against a review ruling

Holding

No leave was required; the impugned ruling was a review under Order 45 Rule (3), which is among the orders appealable as of right under Order 43 Rule (1).

Reasoning

The court noted that Order 43 Rule (1) lists orders appealable as of right, including orders arising under Order 45 Rule (3) on review. Since the ruling of 24th April, 2025 was a review ruling, the Applicant was at liberty to appeal without seeking leave. The Respondent's competency objection therefore failed.

02

Whether the threshold for stay of proceedings was met

Holding

Applying the Global Tours & Travel Ltd criteria, the court found the application merited stay of proceedings.

Reasoning

The court adopted the Ringera J criteria in Global Tours & Travel Ltd: interest of justice, expeditious disposal, prima facie arguability (not probability of success) of the intended appeal, judicial time, and expeditious bringing of the application. Examining the review application and both rulings, the court found this a proper case for stay, the appeal raising a jurisdictional challenge to the magistrate reviewing his own decision.

p. 3
03

Whether the supporting affidavit sworn by an advocate on contested matters was defective

Holding

No contested facts were raised; the affidavit touched on points of law, and the objection was raised only in submissions, not in the grounds of opposition.

Reasoning

The Respondent argued the advocate should not have sworn the affidavit because the issues were contested. The court found the affidavit dealt only with points of law and that the issue was not raised in the grounds of opposition dated 18th July, 2025, but only during argument, so it could not defeat the application.

p. 3

Legal principles established

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  • An appeal from a review ruling under Order 45 Rule (3) of the Civil Procedure Rules lies as of right and does not require leave.
  • Stay of proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and expeditious bringing of the application.

Court orders

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  1. 1.Stay of the proceedings in Makueni MCELC No. E015 of 2024 pending the hearing and determination of the application inter partes (prayer 2)
  2. 2.Stay of any further proceedings pending the hearing and determination of the Appellant's appeal against the ruling delivered on 24th April, 2025 (prayer 3)
  3. 3.Costs of the application provided for (prayer 4)

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (Makueni)
Makueni MCELC No. E015 of 2024: Daniel John Kato Ndambuki vs Family Bank Limited, Catherine Nthenya Sammy and Compliance Auctioneers
Jurisdiction invoked
Appellate jurisdiction over appeals from the trial court under Order 43 Rule (1) and Order 45 Rule (3) of the Civil Procedure Rules; motion under the Civil Procedure Rules for stay of proceedings pending appeal

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.

I therefore find that the Applicant had a right to appeal as a matter of right.
p. 3Right of appeal from review rulings
Applying the criteria set out in the Global Tours Ltd case (Supra), I find that this is a proper case for grant of stay of proceedings.
p. 3Stay of proceedings threshold
I therefore find that the Applicant's application has merit. I allow the application dated 27th May, 2025 in terms of prayers 2, 3 and 4.
p. 3Disposition

Issues in the judgment

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minor

The judgment contains no case number or title for the appeal before the High Court/ELC itself; the case number given relates to the trial court matter, making the citation of this ruling incomplete.

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, "Sammy v Ndambuki & 2 others (Environment and Land Appeal E009 of 2025) [2025] KEELC 5644 (KLR)", Case Analysis (2025). Makueni MCELC Appeal (Notice of Motion dated 27th May, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5644/eng@2025-07-30

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