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ELCPartially AllowedNakuru ELC Appeal (arising from MC ELC/151/18); application in Notice of Motion dated 9th August 2024· [2025] KEELC 780 (KLR)

Mahinda & 4 others v Wainaina & 4 others (Environment and Land Appeal E041 of 2024) [2025] KEELC 780 (KLR)

Environment and Land Court
25 February 2025
1,694 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Nakuru Environment and Land Court halted execution of a land decree pending appeal, but only for 60 days unless the appellant moves the appeal forward.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru on a Notice of Motion dated 9th August 2024 by the 1st Appellant, Mwangi Charles Mahinda, seeking a stay of execution of the decree in MC ELC/151/18 pending the hearing and determination of Nakuru ELC Appeal No E041. The applicant, a senior citizen aged over 70, deponed that execution would render his appeal nugatory, that he stood to lose over Ksh 4,000,000, and offered his title deed as security. The 2nd Respondent, Rufius Kiarie Chege, opposed the application as an abuse of process filed after execution had begun, arguing inordinate delay and failure to furnish security. Counsel filed competing submissions. The court framed one issue: whether to grant stay of the ruling dated 31st July 2024 pending appeal. Applying Order 42 Rule 6 of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal, the court found the application filed without undue delay (filed days after the 31st July 2024 ruling), accepted that substantial loss was demonstrated, and held that the offer of a title deed satisfied the security requirement, citing Arun C. Sharma on the purpose of security. Balancing the parties' rights, the court granted the stay of execution on condition that the Appellant fast-track the appeal to be ready for hearing within 60 days, failing which the order lapses. The court made no express order on costs.

Key legal issues

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01

Undue delay

Holding

Application filed expeditiously; ruling delivered 31st July 2024, application dated 9th August 2024

Reasoning

The court compared the date of the impugned ruling with the date of the motion and found the interval too short to constitute undue delay, satisfying the first prerequisite under Order 42 Rule 6.

p. 4
02

Substantial loss

Holding

Satisfied: applicant deponed the appeal would be rendered nugatory, he is a senior citizen in poor health and stands to lose over Ksh 4,000,000

Reasoning

The court accepted the deponed loss and health circumstances as evidence of substantial loss, aligning with the requirement that assertions be supported by evidence, and found the applicant had indicated the substantial loss he would suffer.

p. 4
03

Security for due performance of the decree

Holding

Offer to deposit title deed constitutes sufficient offer of security

Reasoning

Relying on Arun C. Sharma, the court held security serves due performance of the decree, not punishment; the applicant's offer of his title deed satisfied the third prerequisite.

p. 4

Legal principles established

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  • Grant or refusal of stay of execution is discretionary but must be exercised judiciously and in the interest of justice
  • Substantial loss must be supported by empirical or documentary evidence, not mere assertions
  • The purpose of security is the due performance of the decree, not punishment of the judgment debtor

Court orders

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  1. 1.Stay of execution of the decree in MC ELC/151/18 granted pending the hearing and determination of Nakuru ELC Appeal No E041
  2. 2.The stay is conditional on the Appellant fast-tracking the appeal to be ready for hearing within 60 days, failing which the order lapses

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder XLI Rule 4(2)(b)

Cases cited (14)

  • Butt v Rent Restriction Tribunal
    [1979]
  • Pius Mutua Mbuvi vs Lawrence Mutuku Katundu (Suing as the Legal Representative of the Estate of Jacib Katundu)
    Machakos High Court Civil Appeal No E267 of 2024
  • Suleiman vs Amboseli Resort Limited
    [2004] 2KLR 589
  • Attorney General vs Halal Meat Produces Limited
    Civil Application No Nairobi 270 of 2008
  • Kenya Shell Ltd vs Kibiru & Another
  • Mumuna vs Abuoga
    (1988) KLR 645
  • Nduhiu Gitahi vs Warugongo
    (1988) KLR 621; IKAR 100 (1988-92) 2KAR 100
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Ndungu vs Mutua
    (Civil Appeal E047 of 2024) [2024] KEHC 6276 (KLR)
  • King’ang’i & 2 others vs King’ang’i & 3 others
    (Environment and Land Appeal E012 of 2023) [2024] KEELC 3329 (KLR)
  • Arun C. Sharma vs Ashana Raikundalia t/a Rairundalia & Co Advocates & 2 others
    [2014] eKLR
  • Gianfranco Maneenthi & another vs Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • Loice Khachendi Onyango v Alex Inyangu & another
    [2017] eKLR
  • Samvir Trustees Ltd. vs Guardian Bank Ltd.
    (Nairobi (Milimani) HCCC No. 795 of 1997
On appeal from
Magistrates' Court (Nakuru)
MC ELC/151/18
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mahinda & 4 others v Wainaina & 4 others (Environment and Land Appeal E041 of 2024) [2025] KEELC 780 (KLR)", Case Analysis (2025). Nakuru ELC Appeal (arising from MC ELC/151/18); application in Notice of Motion dated 9th August 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/780/eng@2025-02-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.