Martin Kimweli Mulei v Respondent (Stay of Execution Pending Appeal)
The bottom line
#Kenya's Environment and Land Court stopped execution of a land judgment on appeal, but the applicant must deposit Kshs 100,000 within 21 days or lose the protection.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss if stay is not granted
The Court was satisfied that the Applicant demonstrated he would suffer irreparable loss if execution proceeded, given the permanent house on the property and competing ownership claims.
The Applicant produced photographs of a permanent house constructed on the suit property, and both parties claimed ownership of the property. Execution would result in displacement and irreversible changes to the state of possession, defeating the appeal if successful. On that evidence the court found substantial loss established under Order 42 Rule 6(2)(a).
Whether the application was filed without unreasonable delay
The application filed on 10th July 2024, following judgment delivered on 21st June 2024, was made without unreasonable delay.
Judgment was delivered on 21st June 2024 and the application was filed on 10th July 2024, a gap of about nineteen days. The court found this interval did not amount to unreasonable delay, satisfying the second condition in Order 42 Rule 6(2).
Whether security for the due performance of the decree was offered
Order 42 Rule 6(2)(b) is mandatory; the Applicant's expressed willingness to provide security as directed satisfied the condition.
The rule is couched in mandatory terms requiring security for performance of the decree. Following Arun C Sharma, security serves to guarantee due performance rather than to punish. The Applicant undertook to abide by any conditions the court imposed, and the court fixed Kshs 100,000/= as security, with the stay lapsing on default.
Legal principles established
#- An applicant for stay must prove substantial loss, not merely assert it.
- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.
- Security under Order 42 guarantees due performance of the decree, not punishment of the judgment debtor.
Court orders
#- 1.Stay of execution of the ruling in Makueni CMCC No. 55 of 2012 is granted pending the hearing and determination of the Applicant's Appeal.
- 2.The status prevailing as at 21/06/2024 of all that property known as Plot No. 24 Mwaani Market be maintained pending the hearing and determination of the Appeal.
- 3.The Applicants shall deposit Kshs 100,000/= as security for costs in court within 21 days from the date of delivery of this ruling in default the stay orders shall automatically lapse.
- 4.Costs to abide with the outcome of the appeal.
- On appeal from
- Chief Magistrate's Court, Makueni
- CMCC No. 55 of 2012
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 42 Rule 6(1), (2), (3) and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Kimweli Mulei v Respondent (Stay of Execution Pending Appeal)", Case Analysis (2025). Notice of Motion dated 10th July, 2024 (arising from Makueni CMCC No. 55 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/249/eng@2025-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.