Kinyanjui & another v Mbiyu
The bottom line
#A Kenyan court halted eviction from family land occupied for over 60 years, but only on strict conditions until the main case is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant application for stay of execution and/or setting aside of orders is merited?
Key legal issues
#Whether the application for stay of execution and/or setting aside of the eviction orders was merited
Stay of execution granted pending hearing and determination of the suit, conditioned on the applicants continuing occupation without economic activity and the respondent not alienating the land; setting aside/varying refused
The court applied Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles. Delay since the July 2019 judgment was explained by the advocate's death and Covid-19. Substantial loss was established as the applicants faced imminent eviction from land they occupied for over 60 years. Though no security was furnished, the court held that in a land dispute security for costs cannot suffice and exercised discretion in favour of a conditional stay preserving the status quo.
Whether the applicants' delay in moving the court was excusable
The delay was undue but sufficiently explained
Judgment in the succession cause was delivered on 10 July 2019 and eviction orders issued on 27 February 2023; the application was filed on 3 March 2023. The applicants took no action after the 2019 judgment and were only jolted by the eviction notice, but the court accepted the death of their advocate and the Covid-19 pandemic disruption as sufficient explanation.
Whether security for costs was a bar to the stay
No; in a land dispute the issue of security for costs cannot suffice
The applicants neither furnished security nor expressed willingness to do so, a mandatory condition under Order 42 Rule 6(2)(b). However, relying on Arun C Sharma v Ashana Raikundalia, the court reasoned that since the disputed land is registered in the respondent's name and its value unknown, monetary security was impractical, and exercised its discretion to grant a conditional stay instead.
Legal principles established
#- All three conditions in Order 42 Rule 6(2) for stay of execution are cumulative and must all be satisfied
- Substantial loss is the cornerstone of the jurisdiction to grant stay; it is the loss that would render the appeal or suit nugatory
- Security under Order 42 Rule 6 guarantees due performance of a decree, not punishment of the judgment debtor
Court orders
#- 1.Stay of execution of the orders granted in Thika Succession Cause No 484 of 2015 issued on February 27, 2023, pending the hearing and determination of this suit
- 2.Plaintiffs/applicants to continue to occupy the suit land but shall not conduct any economic activity on it until this suit is heard and determined
- 3.Defendant/respondent shall not sell, alienate and/or sub-divide the suit property
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) of the Constitution to determine disputes relating to land held in trust (implied; not expressly cited)
Relief refused
#Setting aside and/or varying the orders of eviction issued on February 27, 2023, in Thika Succession Cause No 484 of 2015
Having stayed the execution orders, the court found no reason to set aside or vary them; that application can be made before the trial court at Thika
Costs
Costs in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, the Court allows prayer *No. 4* of the Notice of Motion dated 2nd March 2023, with costs being in the cause.
This Court having found that the Plaintiffs/Applicants have met the prerequisites conditions for the grant of stay of execution, allows their application for stay pending the hearing and determination of the suit.
the Court finds that the application was made with undue delay which was sufficiently explained.
the issue of security for costs cannot suffice.
The conditions set out in Order 42 Rule (2)(a) are cumulative. All three must be satisfied before a stay can be granted.
Issues in the judgment
#Disposition allows prayer 4 (set aside/vary) although the court's reasoning grants stay and expressly declines to set aside the orders
Succession cause number misstated as 485 of 2015 in paragraph 51, contradicting references to 484 of 2015
Contradictory finding on delay: 'undue delay which was sufficiently explained'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui & another v Mbiyu", Case Analysis (2023). Environment and Land Case E009 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18581/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.