Chudasama v Chudasama; Shah (Interested Party) (Suing in Her Own Right and also as the Legal Representative of the Estate of Harilal Mulji Chudasama) (Environment & Land Case 1394 of 2016 & 249 of 2019 (Consolidated)) [2025] KEELC 284 (KLR)
The bottom line
#Winning on most grounds isn't enough — an unexplained delay in asking for a stay of execution can sink your appeal in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay in filing the stay application
A delay of approximately 4½ months between judgment and the stay application was unreasonable, particularly as it was unexplained and the motion was only filed after the Respondent's application for appointment of a valuer was allowed
The judgment was delivered on 6th February 2024 and the motion was dated 20th June 2024, a period of about 4½ months. The Applicant filed his Notice of Appeal and sought proceedings promptly, but did not explain why the motion itself was not filed immediately, nor why his earlier motion of 23rd May 2024 was abandoned. The court therefore found the delay unreasonable.
Substantial loss
The Applicant demonstrated substantial loss because execution would involve sale of the suit property, his home, which if sold to a third party would render the intended appeal academic
The court weighed the Applicant's interest in preserving the status quo against the Respondent's right to enjoy the fruits of judgment. Since the appeal claims the entirety of the property while the judgment mandates its sale and sharing of proceeds, execution before appeal would make success academic. The Applicant is in occupation and was the original plaintiff. Substantial loss was therefore demonstrated.
Security for due performance of the decree
Security is discretionary and the Applicant's willingness to abide by any terms was noted, but this could not cure the unreasonable delay
The Applicant proposed no security but indicated willingness to abide by any terms the court set. The court noted the purpose of security under Order 42 is to guarantee due performance of the decree. However, because all three conditions are conjunctive, the failure on delay was fatal notwithstanding willingness on security.
Legal principles established
#- The three conditions for granting stay of execution pending appeal must be met simultaneously; they are conjunctive and not disjunctive
Court orders
#- 1.The application dated 20th June, 2024 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chudasama v Chudasama; Shah (Interested Party) (Suing in Her Own Right and also as the Legal Representative of the Estate of Harilal Mulji Chudasama) (Environment & Land Case 1394 of 2016 & 249 of 2019 (Consolidated)) [2025] KEELC 284 (KLR)", Case Analysis (2025). ELC No. 1394 of 2016 (O.S) consolidated with ELC No. 249 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/284/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.