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ELCOtherNyamira ELC No. 109 of 2021

Tinega (Suing as Legal Representative of the Estate of Nahason Tinega Kurura) v Mogeni & 2 others (Environment and Land Case 109 of 2021) [2026] KEELC 2652 (KLR)

Environment and Land Court
6 May 2026
822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Court of Appeal stay of execution freezes eviction attempts, so a judgment winner in Kenya cannot evict until the appeal is decided.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo, J of the Environment and Land Court at Nyamira, delivered on 6th May 2026, disposed of the plaintiff's Notice of Motion dated 19th November 2025. The underlying suit, Nyamira ELC No. 109 of 2021, had been decided in the plaintiff's favour on 25th July 2024 by Mugo Kamau, J, who declared the Estate of Nahason Tinega Kurura the rightful owner of Title No. Settlement Fund Trustee/Ekerubo/26, issued a permanent injunction against the defendants, ordered them to vacate, dismissed their counterclaim, and awarded costs to the plaintiff, though general damages for trespass were disallowed for want of proof. The plaintiff then sought a warrant of eviction directing Moco Auctioneers to evict the defendants, police security from the OCS Manga Police Station, leave to break open obstructions, and costs of execution. In preparing its ruling, the court learned - via a letter dated 18th March 2026 from Macharia, Gaitho & Murigu Advocates LLP - that the Court of Appeal in Kisumu Civil Appeal (Application) No. E253 of 2024 had, on 13th March 2026, stayed execution of the judgment and decree pending hearing and determination of the appeal. In view of that stay, the court held the application overtaken by events, marked it spent, and ordered that costs abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the plaintiff's Notice of Motion dated 19th November 2025 seeking a warrant of eviction, police security and ancillary execution orders can still be granted in light of the Court of Appeal's stay of execution ordered on 13th March 2026

Key legal issues

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01

Effect of the Court of Appeal's stay of execution on a pending application for a warrant of eviction

Holding

The application could not proceed because the judgment and decree it sought to enforce were subject to a stay of execution ordered by the Court of Appeal pending the appeal

Reasoning

The Deputy Registrar brought to the court's attention a letter from the defendants' advocates enclosing the Court of Appeal ruling of 13th March 2026 in Kisumu Civil Appeal (Application) No. E253 of 2024, which stayed execution of the judgment and decree of 25th July 2024 pending the hearing and determination of the appeal. With execution barred by that stay, the plaintiff's application for a warrant of eviction, auctioneer security and break-open orders had become futile. The court therefore marked the application spent rather than dismissing it, preserving the parties' positions, and directed that costs await the appeal's outcome.

p. 3

Legal principles established

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  • Where a superior court has granted a stay of execution of a judgment and decree, an application for execution of that decree is rendered overtaken by events and cannot be granted pending the appeal

Court orders

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  1. 1.Notice of Motion dated 19th November 2025 marked as spent, having been overtaken by events
  2. 2.Costs to abide the outcome 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
Court of Appeal (Kisumu)
Kisumu Civil Appeal (Application) No. E253 of 2024
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; ruling on Notice of Motion dated 19th November 2025 in enforcement of the decree of 25th July 2024

Relief refused

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Warrant of eviction/possession directing Moco Auctioneers to evict the Defendants from Title No. Settlement Fund/trustee/ekerubo/26

The Court of Appeal granted a stay of execution of the judgment and decree pending the hearing and determination of the appeal, rendering the application overtaken by events

p. 3

Police security for the auctioneer and leave to use reasonable force during eviction

Ancillary to the eviction sought, which could not be granted due to the pending stay of execution

p. 3

Costs

Costs shall abide the outcome of the 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.

In view of the foregoing, Notice of Motion dated 19th November 2025 is overtaken by events and is hereby marked spent. Costs shall abide the outcome of the appeal.
p. 3Disposition - effect of appellate stay of execution
There shall be a stay of execution of the judgment and decree of the Environment and Land Court at Nyamira delivered on 25th July, 2024 in Nyamira ELC No. 109 of 2021 pending the hearing and determination of Kisumu Civil Appeal No. E253 of 2024.
p. 3Court of Appeal stay order rendering execution impossible

Issues in the judgment

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minor

The judgment recites that the underlying judgment was delivered on 25th July 2024 and the decree issued on 23 August 2024, yet the application was filed on 19th November 2025 and this ruling delivered on 6th May 2026, suggesting the ruling text may bear inconsistent dating; the discrepancy is apparent on the face of the record

minor

The Court of Appeal ruling is dated 13th March 2026, after the notice of motion of 19th November 2025, and the stay is described as a 'one-year consent stay' having lapsed; the internal chronology of stay periods is not fully explained in the judgment

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, "Tinega (Suing as Legal Representative of the Estate of Nahason Tinega Kurura) v Mogeni & 2 others (Environment and Land Case 109 of 2021) [2026] KEELC 2652 (KLR)", Case Analysis (2026). Nyamira ELC No. 109 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2652/eng@2026-05-06

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