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ELCAllowedApplication dated 27th January 2026 (Kaloleni MCELC Number E027 of 2024, Appeal)

Makumbi v Kalala (Environment and Land Appeal E005 of 2026) [2026] KEELC 2083 (KLR)

Environment and Land Court
23 March 2026
706 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Malindi paused execution of a land judgment so the losing party is not evicted while their appeal is decided.

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 Malindi by Mwangi Njoroge, J, on an application dated 27th January 2026 seeking stay of execution of the judgment in Kaloleni MCELC Number E027 of 2024 pending appeal, under Order 42 Rule 6 of the Civil Procedure Rules. The impugned judgment, delivered on 23rd January 2026, declared approximately 50 acres of land to belong to the respondent's family and issued a permanent injunction restraining the appellants from entering upon, cultivating, trespassing on or interfering with the suit property; the trial magistrate found the respondent had proved his case on a balance of probabilities and dismissed the appellants' counterclaim. The court found a memorandum of appeal on record satisfied the prerequisite of an existing appeal; the application, filed five days after judgment, involved no inordinate delay; and the appeal could be rendered nugatory because the decree exposed the appellants to imminent eviction and dispossession, while the respondent did not assert possession. The court also observed a triable issue on appeal as to whether the respondent's family claim should have been supported by succession proceedings, given a letter from the Chief confirming the death of Kambi Kalala. Stay of execution was granted in terms of prayer 3, conditional on filing and serving a record of appeal within 45 days, failing which the stay lapses automatically. Mention was set for 24th June 2026 for directions. No costs order was made.

Questions the Court framed

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

  1. 1.Whether there is an appeal in place as required under Order 42 Rule 6
  2. 2.Whether there was inordinate delay in bringing the application
  3. 3.Whether the appeal may be rendered nugatory if stay is not granted

Key legal issues

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01

Presence of an appeal under Order 42 Rule 6

Holding

The existence of a memorandum of appeal satisfied the prerequisite.

Reasoning

The court noted that a Memorandum of Appeal dated 27th January 2026 was on record. This satisfied the first condition under Order 42 Rule 6 of the Civil Procedure Rules that there be an appeal in place before stay of execution can be considered.

p. 1
02

Inordinate delay

Holding

No inordinate delay; the application was filed promptly.

Reasoning

The impugned judgment was delivered on 23rd January 2026 and the application was filed on 28th January 2026, a gap of days. The court found the application had been brought quite promptly, satisfying the second consideration under Order 42 Rule 6.

p. 1
03

Whether the appeal would be rendered nugatory

Holding

Stay granted because the decree exposed the appellants to eviction and the respondent did not assert possession.

Reasoning

The judgment below declared 50 acres to belong to the respondent's family and issued a permanent injunction against the appellants. The respondent was silent on possession, so if the appeal succeeded the appellants may have been denied possession without justification. Stay was accordingly warranted.

p. 2

Legal principles established

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  • A memorandum of appeal on record satisfies the prerequisite of the presence of an appeal under Order 42 Rule 6.
  • Prompt filing of a stay application weighs in favour of granting stay pending appeal.
  • Stay may issue where the decree exposes the applicant to eviction or dispossession and the respondent does not assert possession.

Court orders

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  1. 1.Stay of execution of the judgment in Kaloleni MCELC Number E027 of 2024 granted in terms of prayer number 3 of the application dated 27th January 2026, pending appeal
  2. 2.Stay orders conditional on the applicant filing and serving a record of appeal within 45 days from the date of the order and supplying the court with a hard copy, in default of which the stay orders automatically lapse
  3. 3.Mention on 24th June 2026 for directions as to the hearing of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Kaloleni Magistrates' Court (ELC)
E027 of 2024
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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.

I therefore find that the application dated 27th January 2026 has merit and I grant in terms of prayer number 3 thereof.
p. 2final orders - stay granted
The orders granted are subject to the applicant filing and serving a record of appeal within 45 days from the date of this order, and also supply the court with a hard copy of the said record of appeal, in default of which the orders of stay of execution will automatically lapse.
p. 2conditional stay pending appeal
Since the respondent does not appear to assert possession of the same this court is inclined to order stay of execution of the trial court's orders pending appeal.
p. 2nugatory test - possession
this court considers it to be a triable issue on appeal as to whether or not the claim ought to have been supported by succession proceedings.
p. 2triable issue on appeal - succession

Issues in the judgment

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minor

Parties are not named anywhere in the ruling; they are referred to only as appellants and respondent.

minor

The ruling refers to the suit as both Kaloleni MCELC Number E027 of 2024 and, in discussing the sub judice claim, Kilifi PMCC ELC Case E177 of 2023; the relationship of the two causes is not fully explained.

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, "Makumbi v Kalala (Environment and Land Appeal E005 of 2026) [2026] KEELC 2083 (KLR)", Case Analysis (2026). Application dated 27th January 2026 (Kaloleni MCELC Number E027 of 2024, Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2083/eng@2026-03-23

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