Makiche v Birgen (Environment and Land Appeal E017 of 2026) [2026] KEELC 5372 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the unopposed application dated 28th July 2026 for stay of execution of the trial court's decision pending appeal was merited
- 2.Whether the appeal should be consolidated with Kapsabet ELCA E016 of 2026
Key legal issues
#Stay of execution pending appeal
The application for stay was allowed; the applicant demonstrated the undoubted right of appeal and the decision would dispossess him of the suit property
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.
Consolidation of appeals
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
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.
Unopposed application
The respondent, though duly served, failed to respond to the application
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.
Legal principles established
#- 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
#- 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.Consolidation of this appeal with Kapsabet ELCA E016 of 2026, with the latter as the head file
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
........and the Appellant (the Applicant herein) has an undoubted right of appeal.....
the core essence of consolidation as a tool for efficient dispute resolution without prejudice to any party
justice shall not be delayed.
Issues in the judgment
#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
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
The respondent's name is not stated anywhere in the judgment; the respondent is referred to only generically
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.