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ELCAllowedKapsabet ELCLA No. E017 of 2026

Makiche v Birgen (Environment and Land Appeal E017 of 2026) [2026] KEELC 5372 (KLR)

Environment and Land Court
25 August 2026
632 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Kapsabet halted eviction from Nandi/Kaiboi/126 until Joel Makiche's appeal is heard and 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 Kapsabet on a Notice of Motion dated 28th July 2026 by the applicant/appellant, Joel Makiche, following his appeal against the decision of Hon. Bartoo B, PM delivered on 17th July 2026 in Kabiyet Principal Magistrate's Court MCELC E003 of 2026, which ordered him to vacate LR No. Nandi/Kaiboi/126 within ninety days. The applicant sought a stay of execution of that decision pending his intended appeal, and consolidation of this appeal with Kapsabet ELCA E016 of 2026, both concerning the same parcel and parties. The respondent, though duly served as evidenced by an affidavit of service sworn by process server Stephen Bwire, did not respond. The court found the application unopposed and merited, relying on Pradeep Harish Hindocha vs Catherine Matei Chena on unresponsive served parties and Butt vs Rent Restriction Tribunal on the undoubted right of appeal. On consolidation, it invoked Law Society of Kenya vs Centre for Human Rights and Democracy on consolidation as an efficient dispute-resolution tool, Article 159(2)(b) of the Constitution that justice shall not be delayed, and Martin Kabaya vs David Mungania Kiambia on timely conclusion of proceedings. The court allowed the application in terms of the stay and consolidation prayers, with Kapsabet ELCA E016 of 2026 as the head file, and made no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the unopposed application dated 28th July 2026 for stay of execution of the trial court's decision pending appeal was merited
  2. 2.Whether the appeal should be consolidated with Kapsabet ELCA E016 of 2026

Key legal issues

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01

Stay of execution pending appeal

Holding

The application for stay was allowed; the applicant demonstrated the undoubted right of appeal and the decision would dispossess him of the suit property

Reasoning

The court relied on Butt vs Rent Restriction Tribunal on the right of appeal and found the application cogent and merited, granting stay of the trial court's decision pending the intended appeal.

p. 4
02

Consolidation of appeals

Holding

The appeal was consolidated with Kapsabet ELCA E016 of 2026, which was to be the head file, as both involve the same parcel Nandi/Kaiboi/126 and the same parties

Reasoning

The court invoked the essence of consolidation as a tool for efficient dispute resolution, Article 159(2)(b) on expeditious justice, and Martin Kabaya vs David Mungania Kiambia on timely conclusion of proceedings; E016 was set for mention on 10th November 2026 and became the head file.

p. 4
03

Unopposed application

Holding

The respondent, though duly served, failed to respond to the application

Reasoning

Service was proved by affidavit of service sworn on 20th August 2026 by process server Stephen Bwire; the court noted the respondent neglected to respond, citing Pradeep Harish Hindocha vs Catherine Matei Chena.

p. 3

Legal principles established

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  • An applicant with an undoubted right of appeal is entitled to stay of execution pending appeal, following Butt vs Rent Restriction Tribunal
  • Consolidation is a tool for efficient dispute resolution without prejudice to any party
  • Justice shall not be delayed, per Article 159(2)(b) of the Constitution

Court orders

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  1. 1.Stay of execution of the decision of Hon. Bartoo B, PM delivered on 17th July 2026 in Kabiyet PM's Court MCELC E003 of 2026 pending the lodging, hearing and determination of the intended appeal
  2. 2.Consolidation of this appeal with Kapsabet ELCA E016 of 2026, with the latter as the head file
  3. 3.No orders as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Kabiyet Principal Magistrate's Court
MCELC E003 of 2026
Jurisdiction invoked
Appellate/stay jurisdiction of the Environment and Land Court over appeals from the Principal Magistrate's Court; Article 159(2)(b) of the Constitution of Kenya 2010 invoked on expeditious disposal
Consolidated with
Kapsabet ELCA E016 of 2026

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.

Accordingly, the application dated 28th July 2026 is steadfast, cogent and merited. The same is hereby allowed in terms prayers 4 and 5 therein as set out in paragraph 1 (a) and (b) hereinabove with no orders as to costs.
p. 4Disposition
........and the Appellant (the Applicant herein) has an undoubted right of appeal.....
p. 3Stay pending appeal
the core essence of consolidation as a tool for efficient dispute resolution without prejudice to any party
p. 3Consolidation
justice shall not be delayed.
p. 4Article 159(2)(b)

Issues in the judgment

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minor

The judgment header refers to the consolidated file as 'KAPSABET ELCLA NO. E017 OF 2026' while the application seeks consolidation with 'Kapsabet ELCA E016 OF 2026'; abbreviations ELCLA and ELCA are used interchangeably

minor

The orders are described as 'prayers 4 and 5' in the application, but the judgment itself sets them out only as prayers 1(a) and (b), and only three prayers are reproduced in the judgment

minor

The respondent's name is not stated anywhere in the judgment; the respondent is referred to only generically

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, "Makiche v Birgen (Environment and Land Appeal E017 of 2026) [2026] KEELC 5372 (KLR)", Case Analysis (2026). Kapsabet ELCLA No. E017 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5372/eng@2026-08-25

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