Njeru v Kamau & 5 others (Environment and Land Appeal E035 of 2024) [2025] KEELC 92 (KLR)
The bottom line
#A Bungoma court paused the cancellation of a land title, but only because the owner deposited the title deed in court as security while the appeal proceeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established substantial loss
The court accepted that cancellation of the applicant's title would take effect and render her destitute, satisfying the substantial loss requirement
The applicant was the legal representative of the deceased registered proprietor whose title was cancelled and reverted by the trial court's judgment. She argued that the cancellation taking effect would leave her destitute. The court found this sufficient to demonstrate substantial loss, guided by the principle that proof of substantial loss is the most important limb of a stay application.
Whether the application was made without undue delay
A delay of one month and four days was found not to be inordinate and therefore excusable
Judgment was delivered on 08/07/2024 and the application filed on 12/08/2024, a delay of one month and four days. Guided by the decision in Jaber Mohsen Ali & Another v Priscillah Boit & Another, the court held this delay was not inordinate and thus excusable.
Security for the due performance of the decree
The applicant was silent on security, so the court granted stay on the condition that the certificate of lease be deposited in court
Citing Equity Bank Ltd v Taiga Adams Company Ltd, the court noted that where an order as to security has not been made, the applicant ought to raise it and express willingness to abide by conditions. The applicant's application was silent on security, so the court itself imposed security by ordering deposit of the certificate of lease as a condition for stay.
Whether the appeal is arguable
The court found, from a perusal of the sixteen-ground memorandum of appeal, that the appeal is arguable without delving into its merits
The court perused the memorandum of appeal dated 29/07/2024 with sixteen grounds and, mindful that an intended appeal need not necessarily succeed, found the appeal arguable. The right of appeal must be balanced against the judgment creditor's right to enjoy the fruits of the judgment.
Legal principles established
#- The purpose of an application for stay of execution is to preserve the subject matter in dispute so that the appellant's right is safeguarded
- Stay of execution requires sufficient cause, substantial loss, security, and application without unreasonable delay, plus demonstration that the appeal will be rendered nugatory
- In deciding a stay application the court must exercise its discretion judiciously and opt for the lower rather than the higher risk of injustice
- Mere allegation of substantial loss is not enough; it must be proved
Court orders
#- 1.Stay of execution of the judgment delivered on 08/07/2024 at Kimilili SPMELC No. 26 of 2019 pending hearing and determination of the appeal
- 2.Applicant to deposit the certificate of lease of land parcel no. Kimilili/Kimilili/875/19 in court as security within fourteen (14) days
- 3.1st, 2nd and 3rd Respondents to deposit monthly rent in the joint interest earning account number 0110xxxxxxxxxx at the Co-operative Bank under the names of HERMMERTON/IVAN pending hearing and determination of the appeal
- 4.Applicant/appellant to compile, file and serve a record of appeal within 45 days and move the court towards finalization of the appeal
- 5.In default of the conditions above, the conditional stay of execution shall automatically lapse
- 6.Costs shall be in the appeal
- On appeal from
- Kimilili Principal Magistrate's Court (SPMELC)
- Kimilili SPMELC No. 26 of 2019
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over the subordinate court), Article 40 of the Constitution, Section 26(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeru v Kamau & 5 others (Environment and Land Appeal E035 of 2024) [2025] KEELC 92 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (arising from Kimilili ELC 26 of 2019) – Application dated 12/08/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/92/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.