Catholic Diocese of Malindi Registered Trustees v Mlewa & 3 others (Environment and Land Appeal E029 of 2023) [2026] KEELC 877 (KLR)
The bottom line
#A Kenyan landowner who lost an appeal on a technicality can still pause execution of a subordinate court's orders by applying promptly to the same court, provided they pursue the higher appeal diligently.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to grant the stay of execution
- 2.Whether the applicant has met the legal threshold for grant of stay pending appeal
- 3.Whether the appeal will be rendered nugatory should no stay be granted
- 4.Who is to bear the costs of the application
Key legal issues
#Jurisdiction to grant stay of execution of subordinate court orders where the appeal before the ELC was struck out
The court held it has jurisdiction; Order 42 CPR empowers the court appealed from to preserve suit property and stay execution, and the interests of justice demand its exercise even in this unusual scenario
The court reasoned that the striking out of the appeal left the appellant exposed to execution of the subordinate court's orders. Order 42(1) grants any court appealed from power to issue stay. Sending the appellant to the lower court, which would be reluctant to restrain its own order, or to the Court of Appeal two levels up, would be anomalous. The jurisdictional objection was rejected and the court held it should inquire whether the stay conditions are fulfilled.
Whether the threshold for stay pending appeal was met
Yes - a notice of appeal lodged on 7/10/2025 constituted an appeal for purposes of Order 42 Rule 6(1); the application filed on 16th October 2025 after judgment on 30/9/2025 involved no inordinate delay; execution and eviction could render the appeal nugatory; and the applicant offered to abide by conditions
The court found the notice of appeal sufficient to constitute an appeal in place. Filing within roughly two weeks of the judgment was not inordinate delay. If the suit lands were transferred and the appellant evicted, they might be put beyond the appellant's reach should the appeal succeed, rendering it nugatory. Security was addressed by the applicant's undertaking to abide by conditions the court deems fit.
Legal principles established
#- The court that issued an order/decree under appeal is the proper court in which to seek a stay of execution, even where execution is to be carried out on the orders of a subordinate court
- A court should not pre-empt the Court of Appeal's decision on whether an appeal properly existed where leave was denied; that issue is for the higher court
Court orders
#- 1.Stay of execution of the orders issued in the subordinate court on 11th October 2023 in Malindi Miscellaneous Application Number E028 of 2023 granted in terms of prayer no. 4 of the motion dated 16th October 2025
- 2.Condition imposed: the appellant shall file and serve its record of appeal, if not yet done, upon the respondents within 60 days, failing which the stay orders will automatically lapse and the respondents will be at liberty to proceed to execution
- 3.Costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rules 1(1) and 6 of the Civil Procedure Rules, 2010 (power to preserve suit property and grant stay of execution pending appeal)
Relief refused
#Costs of the application to the applicant
Costs were not awarded to any party immediately; they were made contingent on the appeal's outcome
Costs
The costs of the application shall abide the outcome of the appeal.
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.
In the final analysis I find that the application dated 16/10/25 has merit and the same is allowed in terms of prayer no 4.
The condition for the grant of that stay order, imposed at the instance of this court, is that the appellant shall file and serve its record of appeal, if it has not yet done so, upon the respondents within 60 days from today failure to which the orders of stay granted herein above will automatically lapse and the respondents will be at liberty to proceed to execution.
Consequently, I hold that this court has jurisdiction to hear and determine the motion and thus, to preserve the suit properties safely while an appeal is pending
Since the order sought to be appealed from emanates from this court, this court is the proper court in which to seek a stay of execution.
I do not find that to amount to inordinate delay.
Issues in the judgment
#Counsel's submission that the appeal was dismissed with costs conflicts with the record as noted by the court
Multiple typographical errors affecting clarity, e.g. misspellings of 'functus officio' and party references
The names of the applicant and respondents are not stated in the judgment; parties are referred to only by role
The case number of the present application before the ELC is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catholic Diocese of Malindi Registered Trustees v Mlewa & 3 others (Environment and Land Appeal E029 of 2023) [2026] KEELC 877 (KLR)", Case Analysis (2026). Not stated in the judgment (arising from an appeal struck out on 30th September 2025; subordinate court matter Malindi Miscellaneous Application Number E028 of 2023 - Kazungu Mulewa and Another v The Land Registrar). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/877/eng@2026-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.