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ELCAllowedELCA No. E055 of 2026

Cooperative Bank Ltd v Kanisa & 2 others (Environment and Land Appeal E055 of 2026) [2026] KEELC 4613 (KLR)

Environment and Land Court of Kenya
16 July 2026
1,223 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused a land judgment's enforcement, letting a bank appeal — provided it deposits Kshs 500,000 security and files the appeal on time.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 19th June 2026 in which the Appellant/Applicant, a bank represented by Jackson Oire, sought stay of execution of a judgment and decree of 21st May 2026 delivered by Hon A. N. Makau in the magistrates' court at Kajiado, pending the hearing and determination of an appeal. The trial court had declared the Respondent, James Mochama Kanisa, the sole lawful registered proprietor of L.R. No. Ngong/Ngong/26048 and Ngong/Ngong/26049, cancelled a charge registered in favour of the bank as having been procured by forgery and without his consent, ordered return of the title deeds, and issued a permanent injunction against interference with his possession. The bank argued it was owed Ksh 3,097,012.02 as at 16th November 2022 and would suffer substantial loss if the charge was cancelled; the Respondent countered that the loan proceeds went to his estranged wife and that he had suffered fraud by the bank and his wife. Applying Order 42 rule 6(2) of the Civil Procedure Rules and the principles in Vishram Ravji Halai, Mitu-Bell and Transporters Ltd., and guided by the overriding objectives in sections 1A and 1B of the Civil Procedure Act, the court found the application filed without unreasonable delay, substantial loss likely, and security offered. It allowed the application, granting conditional stay on a bankers bond or cash deposit of Kshs 500,000 within 30 days and filing of the appeal within 60 days, failing which the stay lapses, with costs to abide 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 applicant has satisfied the conditions in Order 42 rule 6(2) for stay of execution of the judgment and decree of 21st May 2026 pending appeal
  2. 2.Whether substantial loss would result if stay is not granted
  3. 3.Whether the application was made without unreasonable delay
  4. 4.What security, if any, the applicant should furnish

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 rule 6(2) were met

Holding

The application satisfied substantial loss (the charge might be cancelled, defeating the appeal), was filed without undue delay, and security was offered; stay was granted on conditions.

Reasoning

The court applied the three conditions in Order 42 rule 6(2) as explained in Vishram Ravji Halai: sufficient cause, substantial loss and security. It reasoned that if the decree is executed and the charge cancelled while the appeal is pending, the appeal may be rendered nugatory. Guided by the overriding objectives of the Civil Procedure Act, the court balanced the appellant's right of appeal against the respondent's decree rights and granted conditional stay.

p. 3
02

Role of the overriding objective in stay applications

Holding

The court must go beyond the settled stay principles and consider what the ends of justice require in each circumstance.

Reasoning

Sections 1A and 1B of the Civil Procedure Act require the court to further the just determination of proceedings, efficient disposal of business, efficient use of resources and timely, affordable disposal. This obliges the court, in considering stay, to delve deeper into what the ends of justice require for both parties rather than applying the classic conditions mechanically.

p. 3

Legal principles established

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  • Stay pending appeal requires substantial loss, absence of unreasonable delay, and security as ordered under Order 42 rule 6(2).
  • Stay jurisdiction balances the appellant's right to prosecute an appeal against the decree holder's rights under the decree; it is not for the stay court to assess the merits of the appeal.

Court orders

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  1. 1.Stay of execution is granted pending the hearing and determination of the appeal
  2. 2.The Appellant is to present a bankers bond of Ksh 500,000 in court or deposit Kshs 500,000 in court within 30 days of the ruling
  3. 3.The appeal should be filed within 60 days
  4. 4.In default of the bond/deposit and filing of appeal, the order for stay is to lapse
  5. 5.Costs shall 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
Magistrates' Court
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (appeal from subordinate court to the Environment and Land Court)

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.

The nugatory limb is meant to obviate the spectre of a meritorious appeal, when successful, being rendered academic the apprehended harm, loss or prejudice having come to pass in the intervening period.
p. 3Purpose of stay of execution jurisdiction - avoiding nugatory appeals
The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.
p. 3Balancing appellant's right of appeal and decree holder's rights
Stay of Execution is granted pending the hearing and determination of the appeal.
p. 3Final orders - stay granted
The Appellant is to present a bankers bond of Ksh 500000 in court or deposit Kshs 500000 in court within 30 days of this ruling.
p. 3Final orders - security
Costs shall abide the outcome of the appeal.
p. 3Final orders - costs

Issues in the judgment

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minor

Stray word 'Tabro' appears at the end of the quotation from Kenya Airports Authority vs. Mitu-Bell Welfare Society.

minor

The judgment heading refers to the application being for stay pending appeal, but order (c) directs that 'the appeal should be filed within 60 days' while paragraph 2 states a Memorandum of Appeal has already been lodged before this court.

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, "Cooperative Bank Ltd v Kanisa & 2 others (Environment and Land Appeal E055 of 2026) [2026] KEELC 4613 (KLR)", Case Analysis (2026). ELCA No. E055 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4613/eng@2026-07-16

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