Mary Nyaguthii Mugo v Mary Wagaki Mureithi
The bottom line
#The High Court dismissed a stay application filed five months late, ruling that vague claims of loss cannot stop execution of a money judgment in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the stay application was made without unreasonable delay
The application was made some five months after judgment without any explanation for the delay; the Appellant was only moved to act when the Respondent scheduled the auction.
The judgment was delivered on 13th December 2023. Although the Memorandum of Appeal was filed within a month, the stay application was not filed until 5th June 2024, prompted by the scheduled auction of 6th June 2024. The Appellant did not explain this delay, failing the requirement under Order 42 Rule 2(1)(a) that the application be made without unreasonable delay.
Whether the Appellant would suffer substantial loss if stay is not granted
The Appellant failed to demonstrate substantial loss; the decree was monetary (Kshs. 890,000/= plus costs) and such a decree cannot be rendered nugatory absent evidence that the Respondent could not refund the decretal sum.
The Appellant's assertion of irreparable loss of proprietary interest was mere assertion without empirical or documentary evidence, per Samvir Trustees and Equity Bank v Taiga Adams. The impugned judgment was a monetary decree arising from a collapsed sale of land agreement. The Appellant was required to show the Respondent would be unable to refund the decretal sum if the appeal succeeded; no such allegation was established.
Legal principles established
#- Mere assertions of substantial loss are insufficient; the applicant must support the claim with empirical or documentary evidence.
- For a monetary decree, substantial loss is shown by demonstrating that the decree-holder would be unable to refund the decretal sum if the appeal succeeds.
Court orders
#- 1.The Motion dated 5th June 2024 is dismissed
- 2.Costs of the application to the Respondent
- On appeal from
- Lower Court (magistrates' court)
- Jurisdiction invoked
- Order 42 Rule 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Nyaguthii Mugo v Mary Wagaki Mureithi", Case Analysis (2025). Notice of Motion dated 5th June 2024 (Appeal pending). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/551/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.