REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCCA NO. E151 OF 2025
NEW BUXTON INN LIMITED...............................................APPELLANT
VERSUS
MILTON WABWIRE (Suing as Legal Representative of the Estate
of the late GEORGE WABWIRE)....................................1ST RESPONDENT
SWIFTWAY AUCTIONEERS.............................................2ND RESPONDENT
RULING
1. This ruling determines the Appellant’s Notice of Motion dated 30th October 2025 seeking, inter alia, a stay of execution pending appeal against the ruling delivered on 15th May 2025 (and the consequential ruling of 16th October 2025). The 1st Respondent opposed the application and filed a replying affidavit and written submissions. The Appellant filed a supplementary affidavit and written submissions in support.
2. Background
The substantive dispute concerns a lease of premises (Plot No. 290/XMI) and proceedings in Mombasa CMCC No. 1135 of 2020, in which the trial court on 15th May 2025 ordered vacant possession of the premises and granted a temporary stay. The Appellant challenges the mandatory order for vacant possession and seeks to preserve the subject matter of the appeal by way of stay of execution.
3. Issues for determination
The court framed and considers the following issues:
a) Whether this Court has jurisdiction to hear and determine the present application and the intended appeal.
b) Whether the Appellant satisfies the statutory and equitable threshold for grant of a stay of execution under Order 42 rule 6 of the Civil Procedure Rules.
c) Whether, in the exercise of its discretion, the application should be granted or dismissed.
4. Jurisdiction
a) Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act confer exclusive jurisdiction on the Environment and Land Court (ELC) over disputes concerning occupation, use of land, landlord–tenant relations and eviction.
b) The subject matter of the substantive proceedings and of the impugned ruling is plainly a dispute about occupation of land, expiry of lease, distress for rent and the grant of vacant possession — matters squarely falling within the exclusive jurisdiction of the ELC.
c) The Appellant contends the original proceedings commenced in the Civil Division and that subsequent appellate proceedings therefore properly lie in this Court. That submission is, with respect, unavailing. Jurisdiction is foundational: where a subject matter falls within the ELC’s exclusive mandate, the Civil Division of this Court lacks competence to determine it. Authorities including Republic v Karisa Chengo & 2 Others and the decisions cited by the 1st Respondent support this position.
d) For these reasons this Court has no jurisdiction to entertain the substantive appeal or the present application insofar as they challenge an order concerning possession/eviction and related land matters.
5. Stay of execution — statutory threshold
a) Order 42 rule 6(2) requires satisfaction of three conditions before stay may be granted pending appeal: (i) that substantial loss may result to the applicant unless the stay is granted and that the application was made without unreasonable delay; and (ii) that such security as the court orders for the due performance of any decree ultimately binding on the applicant has been given.
b) Even if this Court were competent to consider the application, the Appellant has not established entitlement to the discretionary relief sought:
i. The Appellant’s asserted risk of loss from eviction is undermined by the undisputed fact that the lease expired on 1st July 2024 and that, by the trial court’s findings, the Appellant was in arrears and thereafter in unlawful occupation. A person who is a trespasser or unlawful occupier cannot ordinarily claim equitable protection of the court to resist lawful execution of possession orders.
ii. The Appellant delayed in pursuing effective relief. It obtained interim orders but waited after the trial court dismissed its application before filing the present motion; the conduct complained of by the 1st Respondent (including alleged forum shopping) is relevant to the discretionary exercise.
iii. The Appellant has not offered any meaningful security for the due performance of any decree. The alleged counterclaim and disputed arrears are live issues in the trial court and do not negate the Appellant’s obligation to propose appropriate security where required.
c) The nature of the impugned order (mandatory injunction for vacant possession) is one for which the law generally allows execution to be preserved and enforced where the successful party would otherwise be deprived of the use and benefit of land. Granting a stay would risk rendering the trial court’s order nugatory and perpetuate prejudice to the rightful owner/beneficiaries.
6. Conduct and bona fides
a) The 1st Respondent alleges, and the Appellant does not effectively dispute, that some removals of goods have taken place and that the Appellant has been in persistent arrears — matters that speak to the Appellant’s good faith and entitlement to equitable relief.
b) The Appellant asserts partial voluntary vacating and reliance on the 45 ‑ day stay earlier granted by the trial court. The earlier temporary stay has been overtaken by subsequent events and rulings. In any event, the Appellant ’ s actions do not displace the jurisdictional bar nor satisfy the requirements for a discretionary stay.
7. Conclusion and orders
a) This Court finds that the subject matter of the substantive proceedings and of the intended appeal falls within the exclusive jurisdiction of the Environment and Land Court. Consequently, this Court lacks jurisdiction to entertain the appeal and the accompanying application for stay of execution.
b) In the alternative, and even if jurisdiction were assumed, the Appellant has failed to satisfy the statutory and equitable threshold for a stay of execution pending appeal.
c) The Notice of Motion dated 30th October 2025 is hereby dismissed in its entirety.
d) The Appellant is directed, if so advised, to pursue any competent remedy in the Environment and Land Court.
e) Having found that there is no competent APPEAL BEFORE ME FOR WANT OF JURISDICTION, It automatically follows that the said appeal is moot and it is summarily rejected under section 79B of the civil procedure Act
8. Orders accordingly.
Dated, signed and delivered in Open Court/online via MS Teams, this 11TH___ day of __FEBRUARY_ 2026.
HON. JUDGE
WENDY KAGENO MICHENI
HIGH COURT OF KENYA
In the presence of:
APPLICANT: Was present
RESPONDENT : Was Absent
..............................................
Bebora Court Assistant
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCCA NO. E151 OF 2025
NEW BUXTON INN LIMITED...............................................APPELLANT
VERSUS
MILTON WABWIRE (Suing as Legal Representative of the Estate
of the late GEORGE WABWIRE)....................................1ST RESPONDENT
SWIFTWAY AUCTIONEERS.............................................2ND RESPONDENT
RULING
1. This ruling determines the Appellant’s Notice of Motion dated 30th October 2025 seeking, inter alia, a stay of execution pending appeal against the ruling delivered on 15th May 2025 (and the consequential ruling of 16th October 2025). The 1st Respondent opposed the application and filed a replying affidavit and written submissions. The Appellant filed a supplementary affidavit and written submissions in support.
2. Background
The substantive dispute concerns a lease of premises (Plot No. 290/XMI) and proceedings in Mombasa CMCC No. 1135 of 2020, in which the trial court on 15th May 2025 ordered vacant possession of the premises and granted a temporary stay. The Appellant challenges the mandatory order for vacant possession and seeks to preserve the subject matter of the appeal by way of stay of execution.
3. Issues for determination
The court framed and considers the following issues:
a) Whether this Court has jurisdiction to hear and determine the present application and the intended appeal.
b) Whether the Appellant satisfies the statutory and equitable threshold for grant of a stay of execution under Order 42 rule 6 of the Civil Procedure Rules.
c) Whether, in the exercise of its discretion, the application should be granted or dismissed.
4. Jurisdiction
a) Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act confer exclusive jurisdiction on the Environment and Land Court (ELC) over disputes concerning occupation, use of land, landlord–tenant relations and eviction.
b) The subject matter of the substantive proceedings and of the impugned ruling is plainly a dispute about occupation of land, expiry of lease, distress for rent and the grant of vacant possession — matters squarely falling within the exclusive jurisdiction of the ELC.
c) The Appellant contends the original proceedings commenced in the Civil Division and that subsequent appellate proceedings therefore properly lie in this Court. That submission is, with respect, unavailing. Jurisdiction is foundational: where a subject matter falls within the ELC’s exclusive mandate, the Civil Division of this Court lacks competence to determine it. Authorities including Republic v Karisa Chengo & 2 Others and the decisions cited by the 1st Respondent support this position.
d) For these reasons this Court has no jurisdiction to entertain the substantive appeal or the present application insofar as they challenge an order concerning possession/eviction and related land matters.
5. Stay of execution — statutory threshold
a) Order 42 rule 6(2) requires satisfaction of three conditions before stay may be granted pending appeal: (i) that substantial loss may result to the applicant unless the stay is granted and that the application was made without unreasonable delay; and (ii) that such security as the court orders for the due performance of any decree ultimately binding on the applicant has been given.
b) Even if this Court were competent to consider the application, the Appellant has not established entitlement to the discretionary relief sought:
i. The Appellant’s asserted risk of loss from eviction is undermined by the undisputed fact that the lease expired on 1st July 2024 and that, by the trial court’s findings, the Appellant was in arrears and thereafter in unlawful occupation. A person who is a trespasser or unlawful occupier cannot ordinarily claim equitable protection of the court to resist lawful execution of possession orders.
ii. The Appellant delayed in pursuing effective relief. It obtained interim orders but waited after the trial court dismissed its application before filing the present motion; the conduct complained of by the 1st Respondent (including alleged forum shopping) is relevant to the discretionary exercise.
iii. The Appellant has not offered any meaningful security for the due performance of any decree. The alleged counterclaim and disputed arrears are live issues in the trial court and do not negate the Appellant’s obligation to propose appropriate security where required.
c) The nature of the impugned order (mandatory injunction for vacant possession) is one for which the law generally allows execution to be preserved and enforced where the successful party would otherwise be deprived of the use and benefit of land. Granting a stay would risk rendering the trial court’s order nugatory and perpetuate prejudice to the rightful owner/beneficiaries.
6. Conduct and bona fides
a) The 1st Respondent alleges, and the Appellant does not effectively dispute, that some removals of goods have taken place and that the Appellant has been in persistent arrears — matters that speak to the Appellant’s good faith and entitlement to equitable relief.
b) The Appellant asserts partial voluntary vacating and reliance on the 45 ‑ day stay earlier granted by the trial court. The earlier temporary stay has been overtaken by subsequent events and rulings. In any event, the Appellant ’ s actions do not displace the jurisdictional bar nor satisfy the requirements for a discretionary stay.
7. Conclusion and orders
a) This Court finds that the subject matter of the substantive proceedings and of the intended appeal falls within the exclusive jurisdiction of the Environment and Land Court. Consequently, this Court lacks jurisdiction to entertain the appeal and the accompanying application for stay of execution.
b) In the alternative, and even if jurisdiction were assumed, the Appellant has failed to satisfy the statutory and equitable threshold for a stay of execution pending appeal.
c) The Notice of Motion dated 30th October 2025 is hereby dismissed in its entirety.
d) The Appellant is directed, if so advised, to pursue any competent remedy in the Environment and Land Court.
e) Having found that there is no competent APPEAL BEFORE ME FOR WANT OF JURISDICTION, It automatically follows that the said appeal is moot and it is summarily rejected under section 79B of the civil procedure Act
8. Orders accordingly.
Dated, signed and delivered in Open Court/online via MS Teams, this 11TH___ day of __FEBRUARY_ 2026.
HON. JUDGE
WENDY KAGENO MICHENI
HIGH COURT OF KENYA
In the presence of:
APPLICANT: Was present
RESPONDENT : Was Absent
..............................................
Bebora Court Assistant