Chutha & 3 others v Kurgat & another (As Personal Representatives of the Estate of the Late Loyce Kurgat) (Environment & Land Case 175 of 2017) [2025] KEELC 44 (KLR)
The bottom line
#A Kenyan court allowed eviction after the losing party ignored the conditions of their stay of execution for two years.
What this practically means
#Executive summary
#Key legal issues
#Compliance with conditional stay orders
The stay order of 5th December 2022 was conditional on filing and serving a Record of Appeal and depositing Kshs 100,000/= security within 60 days; the security was deposited in time but no Record of Appeal was filed, so the stay automatically lapsed and was deemed vacated.
The court found the order contained two distinct conditions and that failure of either caused the stay to lapse. The joint account was opened on 1st February 2023 within the timeline, satisfying the security limb, but counsel for the Plaintiffs admitted no Record of Appeal had been filed two years later, with no tangible explanation. Counsel's argument that conditions on filing a Record of Appeal fall within the Court of Appeal's jurisdiction was rejected as without merit; the remedy was review or appeal, and the Plaintiffs could not benefit from an order while refusing to comply with it.
Substitution of deceased decree holder before execution
Substitution of the deceased defendant (Loyce Kurgat) was not necessary for execution of the decree issued before her death; her personal representative, holding letters of administration, could proceed with execution.
Order 24 Rule 10 provides that nothing in Orders 3, 4 and 7 applies to proceedings in execution of a decree or order, so the rules on death and abatement/substitution do not apply at execution stage. The deceased died on 14th October 2022 after judgment and decree had been issued, and the decree holder's representatives obtained a grant of letters of administration. Relying on Wang'ondu v Uchumi Supermarkets and Mueni Kiamba v Mbithi Kimeu Kimolo, the court held substitution is not mandatory at execution stage, though it would be prudent if the matter were proceeding to hearing of the appeal.
Entitlement to eviction orders
The application had merit; with the stay lapsed, the Applicants were entitled to proceed with execution, eviction of the Plaintiffs and their tenants, and demolition of structures on the suit property.
Having found the stay lapsed for non-compliance and that no substitution was required, the court granted the eviction and demolition orders, directed the OCS Rhonda Police Station to provide security and maintain law and order, and required the eviction to be carried out during the day in a humane manner. The Plaintiffs had also not settled the damages of Kshs 1,200,000/= awarded against them.
Legal principles established
#- Order 24 Rule 10 of the Civil Procedure Rules removes the necessity of substituting a legal representative in proceedings in execution of a decree or order
- A conditional stay of execution automatically lapses where the conditions imposed are not complied with, and nothing stops the decree holder from executing the judgment
- Substitution of a deceased decree holder is not mandatory at the execution stage
Court orders
#- 1.The order of stay of execution issued on 5th December 2022 declared lapsed and vacated upon the Plaintiffs' failure to comply with the conditions attached to it
- 2.Eviction orders granted against the Plaintiffs/Respondents, their tenants, servants and agents from Land Reference Number Nakuru/Municipality Block 29/291 (Ronda) with delivery of vacant possession to the Applicants
- 3.Applicants authorised to demolish the structures erected on the suit property
- 4.The OCS Rhonda Police Station Nakuru to offer security to the Applicants' authorised agents, court bailiff or auctioneer in carrying out the eviction and demolition and to maintain law and order
- 5.The eviction to be carried out during the day in a humane manner
- 6.Costs of the application to be borne by the Plaintiffs/Respondents
- Jurisdiction invoked
- Original civil suit jurisdiction of the High Court in ongoing execution proceedings (Civil Procedure Rules, Order 24 Rule 10 invoked); no appellate jurisdiction over the Court of Appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chutha & 3 others v Kurgat & another (As Personal Representatives of the Estate of the Late Loyce Kurgat) (Environment & Land Case 175 of 2017) [2025] KEELC 44 (KLR)", Case Analysis (2025). Notice of Motion dated 18th March 2024 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/44/eng@2025-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.