[2025] KEELC 3743 (KLR)
The court found that since the parties had entered into a consent to mark the appeal as settled, there was no longer a substantive appeal before the court. Consequently, the application for stay of execution, which was predicated on the existence of a pending appeal, was rendered moot. The court held that it could...
Source-derived case information.
- Citation
- [2025] KEELC 3743 (KLR)
- Parties
- Appellant: Moses Ng’Ang’A Njoroge (Suing On Behalf Of The Estate Of Margaret Wanjiku Ng’Ang’A - Deceased); Respondent: Fredrick Nyaga Mwangi; Respondent: Kilimambogo Housing Developers Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Civil Appeal E048 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution; Appeal Marked as Settled by Consent
- Outcome
- Appeal marked as settled by consent; application for stay of execution deemed withdrawn; file closed.
- Judges
- JA Mogeni
- Legal Topics
- Stay of Execution, Appeal Settlement, Consent Orders, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Ng’Ang’A Njoroge (Suing On Behalf Of The Estate Of Margaret Wanjiku Ng’Ang’A - Deceased)
Appellant
Fredrick Nyaga Mwangi
Respondent
Kilimambogo Housing Developers Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution; Appeal Marked as Settled by Consent
Legal Issues
- 1 Whether the application for stay of execution is sustainable after the appeal has been marked as settled by consent.
- 2 Whether there is any basis to proceed with the application in the absence of a pending appeal.
Ratio Decidendi
The court found that since the parties had entered into a consent to mark the appeal as settled, there was no longer a substantive appeal before the court. Consequently, the application for stay of execution, which was predicated on the existence of a pending appeal, was rendered moot. The court held that it could not grant orders in respect of a non-existent or withdrawn appeal. Accordingly, the application was deemed withdrawn and the file was closed.
Court Disposition
Appeal marked as settled by consent; application for stay of execution deemed withdrawn; file closed.
Orders
- The appeal is marked as settled by consent of the parties.
- The application for stay of execution is deemed withdrawn.
Full Case Text
Judgment text and source record
23 paragraphs
Njoroge (Suing on behalf of the Estate of Margaret Wanjiku Ng’ang’a - Deceased) v Mwangi & another (Environment and Land Civil Appeal E048 of 2023) [2025] KEELC 3743 (KLR) (8 May 2025) (Ruling)
Neutral citation: [2025] KEELC 3743 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment and Land Civil Appeal E048 of 2023
JA Mogeni, J
May 8, 2025
Between
Moses Ng’Ang’A Njoroge (Suing On Behalf Of The Estate Of Margaret Wanjiku Ng’Ang’A - Deceased)
Appellant
and
Fredrick Nyaga Mwangi
1st Respondent
Kilimambogo Housing Developers Ltd
2nd Respondent
Ruling
1. Hon. V. Asiyo in the Judgment delivered on 18/08/2020 in Thika MCELC Case No. 47 of 2019 which is the subject of this Appeal stated as follows:“Prayer (a) of the counter claim dated 27/02/2020 is neither clear nor exact as to which title the 1st Defendant wants to have cancelled. The identity of the parcel of land whose title the 1st Defendant wants cancelled has not been disclosed. The said prayer only states that the title issued on January 3, 2013 be cancelled. I bet there were many titles that were issued by the government of Kenya on that day. If it is the Plaintiff’s parcel no. 4953/2787, the copy on record show that the lease was issued on December 1, 2011 and the transfer to the Plaintiff registered on December 20, 2016. If indeed the 1st Defendant has nothing to do with that parcel, there is no reason as to why he should seek for its cancellation”
2. This is the Judgment that led to the filing of the Notice of Motion dated 19/12/2024 brought under Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, Section 1A, 1B, 3 and 3A of the Civil Procedure Act, and other enabling provisions of the law seeking the following orders:a.Spent.b.That there be Stay of execution of the judgment of the Honorable Magistrate Court issued in Thika MCELC CASE NO 47 OF 2019 and all consequential decrees and orders pending hearing and determination of this Appeal.c.That costs of this application be in cause.
3. The Application is based on the grounds on the face of it supported by the annexed affidavit of Moses Ng’ang’a Njoroge sworn on 19/12/2024.
4. My perusal of the CTS has revealed that there is no response filed to the application instead there is a consent entered into by the parties dated signed by Counsels of both the appellants and the Respondents to the effect that the Appeal be marked as settled.
5. There is also a receipt dated 3/02/2025 of Kesh 93,000 which states that the payment is in respect of costs for ELCLA E048 of 2023.
6. In view of the foregoing since the Appeal is marked as settled then I believe the Application herein is equally withdrawn since there is no appeal upon which to base the application or file the response to. This file is thus closed.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 8TH DAY OF MAY, 2025MOGENI JJUDGE