Njaga & another v Makogola (Environment and Land Appeal E017 of 2026) [2026] KEELC 5359 (KLR)
The bottom line
#The Environment and Land Court struck out a stay application because the appellants skipped the required first step of asking the trial court for a stay.
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 Respondent's Preliminary Objection dated 27th July 2026 is merited
- 2.Whether the instant application is competent in the face of the provisions of Order 42 Rule 6 of the Civil Procedure Rules
- 3.Who should bear the costs of the application
Key legal issues
#Whether the Respondent's preliminary objection on unmarked amendment of the Memorandum of Appeal was a proper point of law
Declined as a preliminary objection because it involves a live factual dispute; left to be raised with evidence in the substantive appeal
Applying the Mukisa Biscuit test, the objection required investigation of whether an earlier Memorandum and a later amended one existed. The Applicants disputed the premise, asserting no amendment was made. Such a factual dispute is unsuited to summary disposal by preliminary objection and is reserved for the substantive appeal.
Whether service of the Memorandum of Appeal by WhatsApp at 8:12 P.M. on a Saturday was invalid
Service was irregular but deemed made on Monday under Order 50 Rule 9(2) and (3); not invalidated as no prejudice was shown
The mode and timing fell short of orderly practice, but Order 50 Rule 9(2) and (3) deems service outside working hours on Friday or Saturday to be made the next working day, Monday. The Respondent's advocates filed a considered preliminary objection the same day and no prejudice was demonstrated. The court cautioned future compliance.
Whether the application complied with Order 42 Rule 6(1) of the Civil Procedure Rules
Non-compliant; the appellate court was moved prematurely without the trial court first considering a stay application; application struck out
Order 42 Rule 6(1) requires an applicant for stay pending appeal to first approach the trial court, which must pronounce itself on the application, before the appellate court may entertain it. The Applicants conceded no stay application was made before the trial court. The appellate court's jurisdiction was therefore invoked prematurely, rendering the application incompetent and liable to be struck out.
Legal principles established
#- A preliminary objection consists of a pure point of law on assumed pleaded facts and cannot be raised where any fact requires ascertainment or where judicial discretion is sought
- An applicant seeking stay pending appeal must first apply to the trial court before moving the appellate court under Order 42 Rule 6(1)
- Service effected outside working hours on Friday or Saturday is deemed made on the next working day (Monday) under Order 50 Rule 9(2) and (3)
- Article 159(2)(d) does not license parties to disregard established procedures
Court orders
#- 1.The application is struck out as incompetent
- 2.The Appellant to file the Record of Appeal within 30 days and fix it for directions before the Judge
- 3.The Appeal to be mentioned on 29th October 2026 for further directions and confirmation of compliance
- 4.Each party shall bear their own costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Rongo (Rongo MCELC No. 39 of 2019)
- Rongo MCELC No. 39 of 2019
- Jurisdiction invoked
- Order 42 Rules 6(1) and (6), Sections 1A, 1B, 3A, 63(e) and 75 of the Civil Procedure Act, Chapter 21 Laws of Kenya, and Article 159(2)(d) of the Constitution
Relief refused
#Temporary stay of proceedings and of the costs awarded in Rongo ELC No. 39 of 2019, and alternative conservatory order staying proceedings pending appeal
Applicants moved the appellate court without first seeking stay before the trial court, contrary to Order 42 Rule 6(1); the application was premature and incompetent
Costs
Each party shall bear their own costs of this application.
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 instant application, the applicant moved the Court before seeking a similar order in the court below. This is contrary to the law and procedure. This Court’s jurisdiction was invoked prematurely.
Thus, the application is incompetent and struck out.
Each party shall bear their own costs of this application.
The Appellants shall take all necessary steps to prepare the appeal for hearing and shall file the Record of Appeal, if not already filed, within thirty (30) days from the date hereof, failing which either party shall be at liberty to apply.
Issues in the judgment
#The costs direction in paragraph 22 ('The costs be by the applicant') conflicts with the formal order (b) ('Each party shall bear their own costs of this application')
The heading in paragraph 21 section runs directly into orders labelled (a) and (b) without an explicit 'final orders' heading; the numbered judgment body ends mid-analysis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njaga & another v Makogola (Environment and Land Appeal E017 of 2026) [2026] KEELC 5359 (KLR)", Case Analysis (2026). ELCLA E017 OF 2026B. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5359/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.