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ELCDismissedNot stated in judgment· [2025] KEELC 8094 (KLR)

Nthiga v Stower (Environment and Land Case 933 of 2002) [2025] KEELC 8094 (KLR)

Environment and Land Court
20 November 2025
4,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a defendant's bid to pause execution of a 2013 judgment because he delayed over a year, showed no real loss, and offered no security.

What this practically means

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Executive summary

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The Defendant, judgment having been entered against him on 5th September 2013 (permanent injunction, general damages of Kshs 500,000, special damages of Kshs 250,000 and taxed costs), brought a Notice of Motion dated 17th September 2025 seeking stay of proceedings pending tracing of the original court file, and alternatively stay of execution pending an intended appeal against a ruling of 18th July 2024 dismissing his application for review. He argued that the original file, lost upon transfer to the Environment and Land Court and reconstructed in February 2023 without the trial proceedings, made a meaningful appeal impossible, and that denying stay would violate Articles 27 and 48. He also contended that two Kshs 50,000 payments to the plaintiff's counsel were made without prejudice and could not amount to waiver. The plaintiff opposed, citing inordinate delay of over fourteen months, the completed reconstruction, and the defendant's default on instalment proposals. The court applied Order 42 Rule 6(1) and (2) of the Civil Procedure Rules and the principles in Global Tours & Travels, Vishram Ravji Halai and related authorities. It held that only execution remained so there were no proceedings capable of being stayed, and that the reconstructed file could not be traced again. On the alternative prayer, the defendant failed to demonstrate substantial loss, security, or reasonable diligence, the request for proceedings having been misaddressed to the wrong division. The court accepted that without prejudice payments do not waive the right of appeal but do not suspend a valid decree. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Stay of proceedings pending tracing of the original file

Holding

Refused; the file has been reconstructed and only execution remains, so there is nothing capable of being stayed

Reasoning

The court found taxation was concluded by a ruling of 7th February 2024 which remains unchallenged, leaving only execution. Courts do not issue orders devoid of practical effect, and a stay pending tracing of a file that cannot be traced is an oxymoron. Appellate mechanisms such as Rule 31 of the Court of Appeal Rules can cure deficiencies in the record.

p. 6
02

Stay of execution pending the intended appeal

Holding

Refused; the statutory preconditions of Order 42 Rule 6(2) were not met

Reasoning

The application was filed over fourteen months after the ruling and the letter requesting proceedings was misaddressed to the wrong division. The Defendant adduced no empirical evidence of substantial loss beyond the ordinary consequences of execution, nor proof of the plaintiff's impecuniosity, and offered no security.

p. 8
03

Effect of without prejudice instalment payments

Holding

Such payments do not waive the right of appeal but do not insulate the Defendant from execution

Reasoning

The court accepted the privilege attaching to without prejudice communications, adopting the principle that such overtures cannot be used as admissions. However, it held that this protection does not suspend a valid decree, and the balance of justice favoured the successful plaintiff's enjoyment of the fruits of judgment.

p. 9

Legal principles established

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  • Reconstruction of lost court files is an administrative process undertaken under the supervision of the Deputy Registrar
  • Stay of execution pending appeal requires establishment of sufficient cause, demonstration of substantial loss and provision of security
  • Without prejudice payments do not extinguish a litigant's right of appeal but equally do not suspend a valid decree

Court orders

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  1. 1.The Notice of Motion dated 17th September 2025 is dismissed
  2. 2.Costs of the application to be borne by the Defendant
Jurisdiction invoked
Articles 10, 27, 48 and 159 of the Constitution, Section 3A of the Civil Procedure Act and 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, "Nthiga v Stower (Environment and Land Case 933 of 2002) [2025] KEELC 8094 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8094/eng@2025-11-20

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