Githu v Kenya Com Rabbit Consortium Ltd (Environment and Land Appeal E050 of 2022) [2026] KEELC 1642 (KLR)
The bottom line
#Kenya's Environment and Land Court reopened a stay application wrongly dismissed as res judicata, protecting land from sale if the appellant deposits Ksh 2.47 million within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has met the threshold for Review of the Court's orders under Order 45 of the Civil Procedure Rules
- 2.Whether the Memorandum of Appeal is competent, given the challenge to the change of Advocates under Order 9 Rule 9
- 3.Whether a Stay of Execution is warranted and if so, under what conditions
- 4.Whether the Respondent is in Contempt of Court
Key legal issues
#Review under Order 45 - error apparent on the face of the record
Review allowed because the Ruling of 7/7/2025 wrongly applied res judicata to an application that had only been struck out on a technicality, never determined on the merits.
Section 80 of the Civil Procedure Act and Order 45 Rule 1 permit review where there is an error apparent, meaning one self-evident without long-drawn argument. Res judicata under Section 7 requires a matter heard and finally decided. An application struck out because Counsel was not properly on record was never decided on its merits, so dismissing the later stay application as res judicata was a manifest error meriting review.
Competence of the Memorandum of Appeal given Order 9 Rule 9
The procedural lapse in the change of Advocates is a curable irregularity; the Appeal is competent.
Order 9 Rule 9 requires leave for a post-judgment change of Advocates, but the Supreme Court and Court of Appeal have shifted toward substantive justice under Article 159(2)(d). Citing Salat v IEBC, procedural hurdles should not drive a litigant from the seat of justice where the mistake is curable; striking out the entire Appeal would be draconian.
Stay of execution and injunction conditions
Stay and injunction granted on condition that the Applicant deposits the uncontested Ksh 2,470,000 or provides a bank guarantee, since she who seeks equity must do equity and the appeal challenges only part of the decretal sum.
The discretion to grant stay is exercised to ensure the appeal is not rendered nugatory, but a successful litigant should not be deprived of the fruits of judgment without good cause. As the appeal challenges only Ksh 1,500,000 of the decree, the uncontested balance of Ksh 2,470,000 must be secured; failure to comply vacates the stay.
Contempt of Court
Contempt not established; the willful element of disobedience was not proven to the required higher standard.
Contempt is serious and quasi-criminal, risking loss of freedom, and its standard of proof exceeds the balance of probabilities. Given the administrative confusion over the lower Court file and the ambiguity of Order No. 3, which the Respondent viewed as an administrative directive, willful disobedience was not proved.
Legal principles established
#- A striking out of an application on a procedural technicality is not a hearing and final decision on the merits, so applying res judicata to such a struck-out application is a manifest error justifying review.
- A change of Advocates after judgment without a court order under Order 9 Rule 9 is a procedural lapse that may be a curable irregularity in light of Article 159(2)(d) and substantive justice.
Court orders
#- 1.The application for review dated 23/07/2025 is allowed
- 2.The Ruling of the Court dated 7/7/2025 is set aside
- 3.The application for stay of execution dated 22/01/2024 is reinstated and deemed as heard
- 4.A temporary injunction and stay of execution restraining the Respondent from selling or interfering with LR No. Tinganga/Cianada Block 1/1383 pending the hearing and determination of the Appeal, on condition that the Appellant/Applicant deposits Ksh 2,470,000 (the uncontested amount) into a joint interest-earning account in the names of both Counsel within thirty (30) days, or alternatively provides a Bank Guarantee for the said amount from a reputable bank within the same period
- 5.In default of compliance with the deposit or bank guarantee orders, the stay of execution shall stand vacated and the Respondent shall be at liberty to proceed with execution
- 6.The prayer for contempt is dismissed
- 7.Costs shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kiambu
- MCELC Case No. 32 of 2019
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rule 1 of the Civil Procedure Rules
Relief refused
#Declaration of contempt against the Respondent
The willful element of disobedience was not proven to the higher standard required for contempt proceedings
Costs
Costs shall be in the cause.
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.
The application for review dated 23/07/2025 is hereby allowed.
The Ruling of this Court dated 7/7/2025 is set aside.
A temporary injunction and stay of execution is hereby granted restraining the Respondent from selling or interfering with LR No. Tinganga/Cianada Block 1/1383 pending the hearing and determination of the Appeal
Striking out is not the same as a dismissal on merits. Therefore, a manifest error occurred in applying res judicata.
while there was a procedural lapse, striking out an entire Appeal based on a filing entry is a draconian measure. The Court finds this is a curable irregularity.
The prayer for contempt is hereby dismissed.
Costs shall be in the cause.
Issues in the judgment
#Internal date inconsistency: the stay application is described both as dated 22/01/2025 and 22/01/2024 in different passages
Mention date inconsistency: matter said to have been mentioned on 26/01/2026 when orders on prayers 2 and 3 were 'canvassed and allowed', yet the ruling of 2/10/2025 directed submissions and the present judgment disposes of the applications
Earlier application date inconsistency: affidavit described as citing an application dated 23/06/2022 while grounds refer to an application dated 22nd January, 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githu v Kenya Com Rabbit Consortium Ltd (Environment and Land Appeal E050 of 2022) [2026] KEELC 1642 (KLR)", Case Analysis (2026). Kiambu MCELC Case No. 32 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1642/eng@2026-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.