https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4157

Kakuzi PLC v National Land Commission & 8 others (Environment and Land Miscellaneous Case E026 of 2025) [2026] KEELC 4157 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEELC 4157 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Miscellaneous Case E026 of 2025 MN Gicheru, J July 6, 2026 Between Kakuzi Plc Applicant and National Land Commission 1st Respondent Ministry Of Lands, Public Works, Housing And Urban Development (directorate Of Land Adjudication And Settlement) 2nd Respondent Ministry Of Interior And National Administration 3rd Respondent The County Government Of Murang’a 4th Respondent Kakuzi Division Development Association 5th Respondent Kituamba Kaloleni Idps 6th Respondent Milimani Community 7th Respondent Hannah Njoki Mwangi 8th Respondent Inspector General, Kenya National Police Service 9th Respondent Ruling 1.This ruling is on the amended notice of motion dated 4-5-2026 and amended on 17-6-2026. The motion which is brought under Sections 3(1) and (2), 19(2) of the Environment and Land Court Act, Orders 42 rule 6(1) and (2), 51 rule 1 of the Civil Procedure Rules and all enabling provisions of the law seeks the following orders.3.That pending the hearing and determination of the intended appeal this court be pleased to grant an interim order for maintaining the status quo on the locus in quo as at 27th April 2026.5.That pending the hearing and determination of the intended appeal, this Court be pleased to grant an order restraining/staying the 1st, 2nd, 3rd and 4th Respondents from implementing the recommendations in the Gazette Notice published on 17th November 2025 in respect of the Gazette Notice Vol. CXXVII-NO.230 dated 14-11-2025 in so far as it relates to NLC/HLI/006/2017, NLC/HLI/168/2018, NLC/HLI/580/2019 and NLC/HLI/3718/2021.6.That the costs of and incidental to this application be costs in the Appeal.Prayers 1,2 and 4 were not allowed, ex parte. 2.The motion is based on ten grounds and is supported by two affidavits sworn by Simon Odhiambo dated 4-5-2026 and 4-6-2026. The gist of the grounds and the two affidavits is as follows. Firstly, the Applicant filed an application for Judicial Review which the Court dismissed on 27-4-2026. Dissatisfied with the dismissal, the Applicant filed an appeal to the Court of Appeal. Secondly, the 1st, 2nd and 4th Respondents may implement and enforce the determination dated 14-11-2025. If this happens, the substratum of the intended appeal will be destroyed and the appeal rendered nugatory because the 5th – 7th Respondents’ members will enter the land, build houses, subdivide the land by farming on the land. It will also take considerable time and effort to reverse the consequences of the implementation of the recommendations. Finally, the Respondents have nothing to lose because they have not yet implemented the recommendations dated 14-11-2025. 3.The motion is opposed by the 2nd, 3rd and 9th Respondents whose counsel has filed seven (7) grounds of opposition which read as follows.a.The application is incompetent, misconceived and an abuse of the Court process as a status quo order cannot be issued where a negative order has been issued.b.The Court became functus officio upon dismissing the application for leave, having conclusively determined the matter before it. The only recourse available to the Applicant is under Rule 5(2) (b) of the Court of Appeal Rules.c.The court lacks jurisdiction to grant substantive preservatory orders in the absence of a pending suit or judicial review proceedings.d.An order of status quo or order in the nature of interim preservatory relief cannot exist in a vacuum without a pending substantive cause of action.e.The application offends the principle of finality of litigation, as it seeks to re-open issues, already determined by the Court, the court having dismissed the application for leave to apply for judicial review.f.Granting the orders sought would effectively operate as a stay of the decision of the National Land Commission notwithstanding the Court’s refusal to entertain the intended judicial review proceedings in limine.g.The application lacks merit and ought to the be dismissed with costs. 4.The motion is also opposed by the 6th and 7th Respondents and in this regard, Samuel Ndata, the Chairman of the 7th Respondent has sworn a replying affidavit dated 11-6-2026 in which he states as follows. One, the order of 27-4-2026 was a negative order as it did not command any party to do any act, refrain from doing any act, surrender property, pay any money, or take any executable step, save for such orders as may relate to costs. The present application is in effect of the Court’s refusal to grant leave and revive to interim orders which lapsed upon the dismissal of the leave application.Two, under Order 42 rule 6 of the Civil Procedure Rules, this Court has no jurisdiction to suspend an administrative determination after the court has refused leave to challenge that determination. Three, the Applicant has not demonstrated with clarity the precise state of affairs existing on the 4-12-2025 and 27-4-2026, the activities to be restrained, or how the proposed orders are to be supervised and enforced. The allegations of invasion, destruction, banana planting and interference with the suit property have not been supported by sufficient evidence linking the 6th and 7th Respondents to the alleged acts. No clear identification of the alleged persons, police reports, photographs, survey material or other credible evidence connected the 7th Respondent to the alleged acts has been filed. The 6th and 7th Respondents have not authorized, sanctioned, encouraged or directed any unlawful entry, destruction of property or interference with the Applicant’s land. Four, the allegations made by the Applicant are intended to create an impression of urgency and disorder, while the true object of the application is to stop the implementation of the 1st Respondent’s determination. Five, the historical land injustice claims giving rise to the impugned determination have been pending for a considerable period and concern claimants whose rights and interests will be severely prejudiced if the recommendations of the 1st Respondent are stayed without lawful basis. The balance of justice lies in dismissing the application as the orders sought will punish the successful parties and suspend a statutory determination through a collateral process. Finally, the Applicant has not demonstrated that they stand to suffer substantial loss and have not offered any security for the due performance of the decree that may be passed against them or shown that the implementation process complained of is immediate, irreversible and incapable of being addressed through lawful administrative processes. 5.Counsel for the Applicant, the 2nd, 3rd and 9th and the 6th and 7th Respondents filed written submissions dated 4-6-2026, 18-6-2026 and 11-6-2026. The Applicant’s Counsel also filed what is called “rejoinder submissions” dated 23-6-2026.The issues identified in the submissions are as follows.i.Whether this court should issue an order of status quo on the locus in quo pending the hearing and determination of the intended appeal.ii.Whether the Court should issue an order of stay of implementation of the recommendations of the 1st Respondent’s determination.iii.Whether this Court has jurisdiction to grant the orders sought.iv.Whether the court is functus officio.v.Whether the orders sought amount to a stay of a negative order.vi.Whether the application offends the principle of finality of litigation.vii.Whether the orders sought would effectively stay the 1st Respondent’s decision.viii.Whether the ruling dismissing leave is a negative order incapable of stay.ix.Whether the Applicant can obtain status quo or restraining orders where there are no substantive judicial review proceedings pending before this Court.x.Whether the Applicant has met the threshold for stay pending appeal. 6.I have carefully considered the motion in its entirety including the grounds, both in support and in opposition, the affidavits, the written submissions, the issues raised and the case law cited. I find that the framed issues are precise and will resolve the motion. 7.Regarding jurisdiction, I find that this Court has the requisite jurisdiction to entertain the motion. This jurisdiction springs from Section 19(2) of the Environment and Land Court Act (Act No. 19 of 2011) which provides as follows.(2)“ The Court shall be bound by the procedure laid down by the Civil Procedure Act”.The gist of the current motion is to stay the implementation of the recommendations published by the 1st Respondent on 17-11-2025. It is brought under Order 42 rule 6 of the Civil Procedure Rules. Before the dismissal of the chambers summons dated 19-11-2025, this Court had made a status quo order. It is therefore my finding that this Court has the requisite jurisdiction to issue the orders sought. Since the court has jurisdiction, it is not functus officio as regards stay of execution. The Applicant does not seek to reopen the case but to stay execution pending appeal to the Court of Appeal. The Application does not offend the principle of finality of the litigation because all that the Applicant seeks is stay of execution. 8.The second broad issue to consider is whether the Applicant has satisfied the conditions precedent to the grant of an order of stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules. The subrule provides as follows. 2.“No order for stay of execution shall be made under subrule (1) unless –a.the court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; andb.such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.For an order of stay of execution to issue, the Applicant must satisfy all the three conditions of proof of substantial loss, filling of the motion without unreasonable delay and provision of security of the due performance of the final decree. The use of the word “and” after the word “made” and the word “delay”, all in 2(a) means that the three conditions are conjunctive and not disjunctive. 9.It has been stated by Simon Odhiambo, the Applicant’s head of corporate affairs that members of the 5th and 6th Respondents have previously invaded the suit land. This is denied by the Chairman of the 7th Respondent who states that the alleged invasions are intended to create an impression of urgency and disorder in a bid to stop the implementation of the 1st Respondent’s determination. It is my finding that the Applicant has not proved that it stands to suffer substantial loss. I find no tangible evidence to link the Respondents with any invasion of the suit land. No evidence has been filed in support of this particular allegation. It is not explained by the Applicant why the said Respondents who have been peaceful through the hearing of their case by the first Respondent would suddenly turn chaotic after they have succeeded in their long awaited quest. After all, the 9th Respondent has not been accused of failure to maintain law and order on the suit land.It is my finding that the Applicant has satisfied the second condition of filing the motion without unreasonable delay because immediately after the ruling of 27-4-2026, there was an oral application for stay of execution and a formal one was made on 4-5-2026 which was less than 10 days after the ruling. 10.Looking at the final condition of security for the due performance of the decree or order that may be binding upon the Applicant, I find that the Applicant has not made any mention of it. The Applicant is not saying how they will compensate the Respondents in the event that their appeal to the Court of Appeal is dismissed. There is no commitment from the Applicant that it will expedite the appeal and the said appeal is in good faith and not meant to delay the Respondents in the enjoyment of the fruits of their success. Yet this providing of security is a key plank in the application of this nature. It is my finding that the Applicant has satisfied only one of the three conditions necessary for the grant of the order of stay of execution yet all the three conditions must be satisfied together if the Applicant’s application is to succeed. 11.Finally, it is my finding that this Court having dismissed the application for leave to commence judicial review proceedings, it would not be proper to allow the stay of execution sought. There is nothing pending before this Court except this application. The Court did not make any orders against the Applicant. When the Court was not sure whether to allow leave, it could stay execution but the moment it became sure that leave ought not to be issued, it could no longer lawfully issue any other order in favour of the Applicant. There is no suit that is pending and the ruling of 27-4-2026 is a statement that the Applicant has no cause of action. In those circumstances no order of stay can reasonably be granted in favour of the Applicant. 12.In conclusion and for the above stated reasons, I find no merit in the motion dated 4-5-2026 which I dismiss with costs to the Respondents.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 6TH DAY OF JULY, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants – AntonyApplicant’s Counsel – Mr Bett h/b for Mrs Opiyo1st Respondent’s Counsel – Absent5th Respondent’s Counsel – Mr Ambani6th and 7th Respondent’s Counsel – Miss MaguguMr Odongo for the 2nd, 3rd and 9th Respondents