Epuret v Mamai & another (Environment & Land Case 180 of 2016) [2023] KEELC 255 (KLR)
The bottom line
#A Kenyan court refused to pause execution of a land judgment because the applicant delayed, never proved real loss, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
A delay of two months in filing the stay application, where judgment was delivered in open court in the presence of the plaintiff's counsel, was unreasonable and unexplained
The judgment was delivered on February 9, 2022 in open court with all parties present, including counsel for the plaintiff. The application was filed on April 5, 2022. The plaintiff merely asserted lack of unreasonable delay without explaining the two-month gap. Because stay is discretionary, the plaintiff was required to place sufficient evidence before the court explaining the delay, which he did not do.
Whether the plaintiff demonstrated substantial loss
The plaintiff failed to demonstrate substantial loss; he only vaguely alleged execution to his detriment without specifying the loss
Relying on Kenya Shell Ltd v Benjamin Kibiru and Machira t/a Machira & Company Advocates v East African Standard (No 2), the court held that substantial loss is the cornerstone of the jurisdiction. The plaintiff's assertion that the respondents may execute 'to my detriment' did not specify what detriment or loss would ensue. A court will not order a stay upon mere vague speculation.
Whether the plaintiff offered security
The plaintiff failed to offer security or even aver willingness to abide by conditions the court might impose
Order 42 rule 6(2)(b) requires the applicant to give such security as the court orders for due performance of the decree. No security was offered nor any averment of willingness to abide by conditions. Citing Wyclifie Sikuku Walusaka v Philip Kaita Wekesa, the court held that the offer of security must come from the applicant himself as a sign of good faith.
Whether arguability of the intended appeal is a relevant consideration
Arguability is not a consideration under Order 42 rule 6(1) and (2); the Ishmael Kagungi Thande case was distinguishable as it concerned rule 5(2) of the Court of Appeal Rules
The plaintiff relied on Ishmael Kagungi Thande v HFCK to urge that the intended appeal had chances of success. The court distinguished that authority because it was decided under rule 5(2) of the Court of Appeal Rules where arguability is a principal consideration. Further, the intended appeal arose from a judgment of Omollo J, a judge of concurrent jurisdiction, and only the Court of Appeal could gauge its arguability.
Whether Articles 38 and 154(2) of the Constitution were applicable
The constitutional provisions cited by the plaintiff were inapplicable; the relevant provision is Order 42 rule 6(1) and (2) of the Civil Procedure Rules
Although the plaintiff premised the motion on Articles 38 and 154(2) of the Constitution, the court found Article 38 deals with political rights and Article 154(2) with the establishment of the office of Secretary to the Cabinet, neither of which is relevant to stay of execution. The applicable provision is Order 42 rule 6(1) and (2) of the Civil Procedure Rules.
Legal principles established
#- An applicant for stay of execution under Order 42 rule 6 must satisfy all four conditions: sufficient cause, substantial loss, application without unreasonable delay, and offer of security
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
- A vague allegation of detriment without particulars does not constitute substantial loss
- The offer of security must come from the applicant as a sign of good faith
- Arguability of the appeal is not a consideration under Order 42 rule 6(1) and (2), and a judge of concurrent jurisdiction cannot gauge the arguability of an intended appeal to the Court of Appeal
Court orders
#- 1.The notice of motion dated April 4, 2022 is dismissed
- 2.Costs of the application awarded to the defendants
- On appeal from
- Environment and Land Court (Busia)
- Suit over land parcel Teso/Amukura/1072, judgment dated February 9, 2022 by Omollo, J
- Jurisdiction invoked
- Order 42 rules 5 and 6 of the Civil Procedure Rules; sections 1A, 1B, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngala & 7 others v Habiba Investments Ltd[2026] KEELC 5972 (KLR)21 Sept 2026
Cite this brief
#Cite this brief
Caselaw, "Epuret v Mamai & another (Environment & Land Case 180 of 2016) [2023] KEELC 255 (KLR)", Case Analysis (2023). Not stated in the judgment (notice of motion dated April 4, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/255/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.