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ELCAllowedNotice of motion dated 4th August 2025 arising from appeal against orders in Kakamega CMC ELC No. 494 of 2018 (OS)

Shibwabo v Robert (Sued as the Administrator and Legal Representative Of The Estate Of Rehema Musitoke Ali - Deceased) (Environment and Land Appeal 068 of 2025) [2025] KEELC 7777 (KLR)

Environment and Land Court
5 November 2025
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega halted an eviction because the property owner was ordered out without ever being heard.

What this practically means

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Executive summary

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This was a notice of motion dated 4th August 2025 by the appellant seeking stay of execution of eviction orders issued on 30th July 2025 in Kakamega CMC ELC No. 494 of 2018 (OS), pending hearing and determination of her appeal to the Environment and Land Court at Kakamega. The appellant's suit in the subordinate court had been dismissed on 29th July 2025 for want of jurisdiction following a preliminary objection, and the respondent then obtained eviction orders ex parte on the same day the application was presented, without service on the appellant. The appellant contended she was being evicted from her only home, had an unfettered right to be heard, and that the appeal would be rendered nugatory. The respondent opposed, maintaining the appellant was a trespasser who had illegally collected over Kshs. 3,000,000 in rent, that the counterclaim remained unaddressed due to lack of jurisdiction, and that the 30/07/2025 application merely corrected an error on the face of the record. The court confined itself to whether the Order 42 Rule 6 threshold was met, declining to delve into the merits of the appeal. Relying on Kenya Power & Lighting Co. Ltd v Kigata Ngare Unduthu and Kenya Shell Limited v Benjamin Karuga Kibiru, the court held substantial loss was the cornerstone of the jurisdiction, found the appellant had an arguable appeal centred on denial of a hearing, and allowed the application, staying execution of the 30th July 2025 orders pending the appeal, with costs of the application to the respondent.

Questions the Court framed

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

  1. 1.Whether the appellant has met the threshold for grant of orders of stay of execution pending appeal

Key legal issues

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01

Whether the threshold for stay of execution pending appeal under Order 42 Rule 6 was met

Holding

Yes - substantial loss, no unreasonable delay, and an arguable appeal were demonstrated; eviction of the appellant from her only home without a hearing constituted substantial loss.

Reasoning

The trial court heard the 30/07/2025 application and issued eviction orders the same day without ordering service on the appellant, denying her a hearing. She raised an arguable appeal on that basis and deponed she would be rendered homeless with her children. The court was satisfied that substantial loss would follow if stay was not granted.

p. 3

Legal principles established

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  • Substantial loss is the corner stone of the jurisdiction to grant stay pending appeal.
  • An applicant for stay pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and willingness to provide security.

Court orders

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  1. 1.An order of stay of execution issued staying execution of the orders issued on 30th July 2025 in Kakamega CM L&E No. 494 of 2018 (OS) pending the hearing and determination of the appeal
  2. 2.Costs of the application to be borne by the respondent

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Kakamega
Kakamega CMC ELC No. 494 of 2018 (OS)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; section 18 of the Civil Procedure Act referred in submissions

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.

An order of stay of execution is hereby issued staying execution of the orders issued on 30th July 2025 in Kakamega CM L&E No. 494 of 2018 (OS) pending the hearing and determination of this appeal.
p. 3Final orders - stay of execution
substantial loss is the corner stone of the jurisdiction to grant stay pending appeal
p. 3Threshold for stay
the appellant has an arguable appeal, because she has raised the issue of being ordered evicted without being accorded an opportunity of being heard
p. 3Arguable appeal and right to be heard

Issues in the judgment

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minor

The judgment refers to Kakamega ELC Miscellaneous Application No. 52 of 2018 in one passage and Kakamega ELC Case No. Misc Appl. No. E052 of 2025 in another - inconsistent numbering of the same transfer application.

minor

The respondent is described inconsistently with respect to gender pronouns ("he"/"him" in the replying affidavit summary while the dispute concerns eviction of the appellant).

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, "Shibwabo v Robert (Sued as the Administrator and Legal Representative Of The Estate Of Rehema Musitoke Ali - Deceased) (Environment and Land Appeal 068 of 2025) [2025] KEELC 7777 (KLR)", Case Analysis (2025). Notice of motion dated 4th August 2025 arising from appeal against orders in Kakamega CMC ELC No. 494 of 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7777/eng@2025-11-05

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