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ELCPartially AllowedELC Suit No. E005 of 2025

Beth Gakii Kinya Kiunga v Dieter Wellendorf

Environment and Land Court of Kenya
28 September 2026
11,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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A Kenyan land court can still pause its own ruling and case after an appeal is filed, and it did exactly that here.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (Naikuni J) determined a Notice of Motion dated 26th February 2026 by the Defendant, Dieter Wellendorf, seeking a stay of the Court's interlocutory Ruling and Orders of 29th January 2026 and a stay of further proceedings pending an appeal he had lodged at the Court of Appeal. The Plaintiff, Beth Gakii Kinya Kiunga, opposed through grounds of opposition and submissions, arguing the application was res judicata, an abuse of process and forum shopping, and that the Court was functus officio and could not sit in appeal over its own decision, citing Owners of Motor Vessel 'Lillian S' v Caltex Oil. The Applicant relied on Order 42 Rule 6 and Section 3A of the Civil Procedure Act, Butt v Rent Restriction Tribunal, Ramogi v Attorney General, and authorities on arguable appeals and nugatory appeals. The court framed (duplicatively) the jurisdictional issue and the issue of costs. It held that a trial court does not become functus officio upon lodgment of a Notice of Appeal; the jurisdiction to stay its own orders pending appeal is expressly conferred by Order 42 Rule 6 and Section 3A. Finding the Notice of Appeal timeously lodged, the appeal arguable on company law distinctiveness and personal non-suit (Madita Company Limited's proprietary rights determined without it being enjoined), substantial loss established through Section 68 preclusion and uncontroverted affidavit evidence, and no prejudice to the Plaintiff who remains in occupation without paying consideration, the court allowed the application: it stayed the Ruling and Orders of 29th January 2026 and further proceedings, directed the Plaintiff to remain in occupation during the appeal as security, vacated the hearing fixed for September, and ordered costs of the application to 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 this Court has the requisite jurisdiction to grant a stay of its own proceedings and rulings after a Notice of Appeal has been timeously lodged (framed twice by the court)
  2. 2.Whether the Applicant has satisfied the criteria for a stay of proceedings and of the ruling of 29th January 2026 pending appeal (functus officio, arguable appeal, nugatory appeal, substantial loss)
  3. 3.Who bears the Costs of the Notice of Motion application dated 26th February, 2026

Key legal issues

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01

Whether the court is functus officio after delivering its ruling of 29th January 2026 and lodging of a Notice of Appeal

Holding

The court is not functus officio; it retains jurisdiction under Order 42 Rule 6 and Section 3A of the Civil Procedure Act to grant a stay of its own ruling and proceedings pending appeal.

Reasoning

The Respondent relied on Owners of Motor Vessel 'Lillian S' to urge the court had lost jurisdiction. The court distinguished the functus officio doctrine, as articulated by the Supreme Court in Raila Odinga (2013) and the Court of Appeal in Telkom Kenya v John Ochanda, holding it applies to reopening final decisions, not to stay applications that do not invite the court to revisit the same issue. The jurisdiction to stay pending appeal is expressly conferred by statute.

p. 36
02

Whether the Applicant satisfied the stringent criteria for stay of proceedings pending appeal

Holding

Yes - the Notice of Appeal was timeously lodged, the appeal is arguable (raising company law issues of separate legal personality and personal non-suit), and the appeal would be rendered nugatory if trial proceeded before its determination.

Reasoning

Applying the Ramogi and Global Tours criteria and Kinyanjui v Ketter, the court found a single bona fide arguable ground suffices. The trial, scheduled for 29th September 2026, would have determined proprietary rights of Madita Company Limited, a non-party, with irreversible prejudice given the statutory preclusion in Section 68 of the Civil Procedure Act against later challenging an unappealed interlocutory decree. Uncontroverted affidavit evidence that the Plaintiff remained in occupation without payment further supported the balance of convenience.

p. 48
03

Who bears the costs of the application

Holding

Costs of the application shall abide the outcome of the intended appeal.

Reasoning

Although costs ordinarily follow the event under Section 27(1) of the Civil Procedure Act, the court, having granted a discretionary stay pending an appeal whose outcome is undetermined, directed that costs await the result of the appeal.

p. 50

Legal principles established

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  • A trial court does not become functus officio upon a Notice of Appeal being lodged; it retains jurisdiction to stay its own orders and proceedings pending appeal under Order 42 Rule 6 and Section 3A of the Civil Procedure Act.
  • A party seeking a stay of proceedings pending appeal must place before the court exceptional circumstances showing the appeal would be rendered nugatory.
  • Grounds of opposition address only points of law and cannot impeach uncontroverted sworn factual depositions, which are deemed admitted.
  • Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise.

Court orders

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  1. 1.Notice of Motion dated 26th February 2026 allowed in terms of Prayer 4
  2. 2.Stay of the Ruling and Orders of the Court dated 29th January 2026 pending hearing and determination of the appeal lodged at the Court of Appeal
  3. 3.Stay of further proceedings in ELC Suit No. E005 of 2025 pending determination of the said appeal
  4. 4.Plaintiff/Respondent to remain in occupation of the suit property during the pendency of the appeal, as security against prejudice
  5. 5.Hearing of the case scheduled on 29th September vacated and deferred awaiting the outcome of the appeal
  6. 6.Costs of the Application to abide the outcome of the intended appeal

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act, Cap. 21; Order 42 Rule 6 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application to the Applicant/Defendant

Costs ordered to abide the outcome of the intended appeal rather than being awarded to either party

p. 51

Costs

Costs of the Notice of Motion application dated 26th February, 2026 shall abide the outcome of the intended 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.

THAT there be a stay of the Ruling and Orders of this Court dated 29th January, 2026, pending hearing and determination of the appeal lodged at the Court of Appeal.
p. 51Final orders - stay of ruling pending appeal
THAT there be a stay of further proceedings in ELC Suit No. E005 of 2025 pending determination of the said appeal.
p. 51Final orders - stay of proceedings
Therefore, by all means, this Court strongly discern that it is not functus officio”,. It remains legally clothed with the power to consider the application.
p. 41Jurisdiction - functus officio
forcing the Applicant to proceed to full trial before the Court of Appeal determines this fundamental issue would wipe out the substratum of his appeal. This satisfies the requirement of substantial loss.
p. 48Substantial loss and nugatory appeal
General legal arguments cannot impeach factual depositions made under oath; consequently, uncontradicted affidavit facts are deemed admitted by the opposing party.
p. 48Uncontroverted affidavit evidence

Issues in the judgment

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minor

Issues (a) and (b) framed for determination are identical duplicates

minor

Typo in final orders - hearing date stated as 2029 instead of 2026

minor

Application inconsistently dated 26th February, 2026 and '26th February, 2926'

minor

Impugned application inconsistently referred to as dated 10th February, 2025 and 10th February, 2026

minor

Ruling states 'ELC SUIT NO. E005 OF 2025' while the application date of 2026 postdates; the header and heading year sequence is internally consistent but the earlier suit application dates conflict (2025 vs 2026)

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, "Beth Gakii Kinya Kiunga v Dieter Wellendorf", Case Analysis (2026). ELC Suit No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6207/eng@2026-09-28

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