Githu v Koigi (Suing as the legal representative of the Estate of Paulina Wanjiku Wabacha - Deceased) (Environment and Land Appeal E045 of 2023) [2025] KEELC 50 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's bid to stop his eviction because he offered no security and tied his request to an unrelated succession case.
What this practically means
#Executive summary
#Key legal issues
#Competence of the stay application
The stay application was incompetent because it was pegged on a succession cause in which no appeal is pending before this court.
The applicant sought stay pending the hearing of Thika P&A 580 of 2014, a succession cause before a different court. The ELC, exercising first appellate jurisdiction, has no appeal before it from that succession court and thus no platform to exercise the invited appellate jurisdiction. The court nonetheless went on to examine the merits of the plea.
Security for due performance of the decree
The applicant failed the security requirement under Order 42 rule 6(2) and so failed to establish entitlement to stay.
Under Order 42 rule 6(2), stay requires substantial loss, absence of unreasonable delay and security for due performance of the decree. Although there was no inordinate delay and some evidence of development on the land, the applicant tendered no evidence of, and proposed no, suitable security despite having been adjudged to have no right to remain on the land. The court therefore had no evidential material to exercise its discretion in his favour.
Interlocutory injunction pending appeal
The application failed to justify grant of an interlocutory injunction by a first appellate court.
The applicant's supporting affidavit and written submissions did not address the criteria for granting an interlocutory injunction by a first appellate court. Without such justification the court had no basis to exercise the jurisdiction sought, and the prayer for injunction necessarily failed.
Legal principles established
#- A first appellate court cannot entertain an interlocutory application pegged on proceedings in a court from which no appeal is before it.
- An applicant for stay of execution must propose and offer security for due performance of the decree; the burden of doing so lies on the applicant.
Court orders
#- 1.The amended notice of motion dated 4th December 2023 is rejected and dismissed
- 2.The applicant shall bear costs of the application
- On appeal from
- Magistrates' Court (Thika MCELC)
- Thika MCELC 94 of 2020
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court under Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githu v Koigi (Suing as the legal representative of the Estate of Paulina Wanjiku Wabacha - Deceased) (Environment and Land Appeal E045 of 2023) [2025] KEELC 50 (KLR)", Case Analysis (2025). ELC Appeal Case E019 of 2023 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/50/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.