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ELCAllowedButali Mcelc Appeal (arising from Butali Mcelc No. E069 of 2024); Notice of Motion dated 23rd June 2025

Muhati & another v Kuta (Environment and Land Appeal E057 of 2025) [2025] KEELC 6982 (KLR)

Environment and Land Court
8 October 2025
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) delivered on 8th October 2025 on a notice of motion dated 23rd June 2025 by the appellants, Epainito Muhati and Paul Lwamba Muhati, in an appeal against the ruling of the trial court in Butali MCELC No. E069 of 2024 (Silus Misango Kuta v Epainito Muhati & Paul Lwamba Muhati). The trial court had on 10th June 2025 declined to set aside a judgment entered on 28th January 2025 after the applicants failed to enter appearance or file a defence. The applicants sought stay of the judgment, ruling, warrants of execution and further proceedings pending appeal, asserting they were never served with summons and only learnt of the suit when an auctioneer proclaimed their livestock. The respondent opposed, contending service was properly effected, the judgment was regular, and no substantial loss or security was demonstrated. The court framed a single issue: whether the applicants were entitled to the orders sought. Applying Order 42 Rule 6 of the Civil Procedure Rules and the authorities on substantial loss, the court held that the threshold for stay of proceedings is higher, but the fundamental right to be heard justified staying proceedings; and that the arguable appeal on non-service and triable defence, together with the unchallenged claim that the attached livestock was the applicants' livelihood, demonstrated substantial loss. The application was allowed in its entirety, with stay of the judgment, ruling, warrants of execution and further proceedings pending appeal, and costs in the cause.

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 is entitled to the orders sought, namely stay of execution and stay of proceedings pending appeal

Key legal issues

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01

Whether the applicants were entitled to stay of proceedings pending appeal

Holding

Stay of proceedings granted, since if proceedings were not stayed an injustice might be occasioned given the applicants had not filed a defence in the lower court.

Reasoning

The court noted the appellants did not enter appearance or file defence, but whether they were denied a hearing is the subject of the appeal and was not delved into. The right to be heard before a decision is made is a fundamental right, so staying proceedings would avert possible injustice pending determination of the appeal.

p. 3
02

Whether the applicants demonstrated substantial loss to warrant stay of execution pending appeal

Holding

Substantial loss demonstrated: an arguable appeal on non-service and a triable defence, plus unchallenged assertion that attached livestock is the applicants' source of livelihood.

Reasoning

The applicant denied service of summons and asserted a lease of the suit property negating the debt. The claim that attached livestock was his livelihood was unchallenged, and being condemned unheard constitutes substantial loss since the right to be heard is fundamental.

p. 4

Legal principles established

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  • For an applicant to obtain orders to stay the hearing and determination of a matter, they must unequivocally demonstrate that proceeding with the matter will result in manifest injustice; the threshold for stay of proceedings is higher than for stay of execution.
  • A applicant for stay of execution must demonstrate substantial loss, absence of unreasonable delay, and willingness to furnish security; imminent execution alone does not amount to substantial loss.
  • Being condemned unheard demonstrates substantial loss because the right to be heard is fundamental.

Court orders

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  1. 1.Pending the hearing and determination of this appeal, stay of the judgment, ruling, warrants of execution and any further proceedings or consequential orders in Butali MCELC No. E069 of 2024 Silus Misango Kuta v Epainiti Muhati & Paul Lwamba Muhati
  2. 2.Costs of the application shall be in the cause

The bench

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

majority

Wrote the judgment

On appeal from
Butali Magistrates' Court (Mcelc)
E069 of 2024
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Article 159(2)(b) of the Constitution as read with section 3 of the Environment and Land Court Act and sections 1A and 1B of the Civil Procedure Act

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.

That pending the hearing and determination of this appeal this Honourable Court is hereby pleased to stay the judgment, ruling, warrants of execution and any further proceedings or consequential orders in Butali MCELC No. E069 of 2024 Silus Misango Kuta V Epainiti Muhati & Paul Lwamba Muhati.
p. 4Final orders - stay of execution and proceedings pending appeal
That costs for this application shall be in the cause.
p. 4Final orders - costs
imminent execution cannot by itself be a basis for grant of stay of execution pending appeal, as execution is a lawful process pursuant to grant of an order, judgment or decree by a court.
p. 3Stay of execution - substantial loss
the allegation that he was condemned unheard is a demonstration of substantial loss, as a right to be heard is fundamental
p. 4Right to be heard as substantial loss

Issues in the judgment

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minor

The 1st appellant's name is spelled inconsistently within the judgment - 'Epainito Muhati' in the cause title of the motion and reply, but 'Epainiti Muhati' in the operative order.

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, "Muhati & another v Kuta (Environment and Land Appeal E057 of 2025) [2025] KEELC 6982 (KLR)", Case Analysis (2025). Butali Mcelc Appeal (arising from Butali Mcelc No. E069 of 2024); Notice of Motion dated 23rd June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6982/eng@2025-10-08

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