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ELCPartially AllowedNot stated in the judgment (appeal against ruling in Tigania PM ELC Case No. 23 of 2024/2014)· [2025] KEELC 1110 (KLR)
Kathuthu (Suing as the Legal representative of the Estate of Nkuni M’Turuchiu - Deceased) v Kiunga (Suing as the legal representative of the Estate of Stephen Michuki Kiunga - Deceased) (Environment and Land Appeal E084 of 2024) [2025] KEELC 1110 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#A Meru court paused execution of a land judgment for six months, but only after the appellant deposited Kshs 350,000 as security.
What this practically means
#Executive summary
#By a notice of motion dated 19/12/2024, the appellant sought a stay of execution of the judgment and decree in Tigania PM ELC Case No. 23 of 2024 (Theresa Michuki Kiunga v Stephen Kathuthu), delivered ex-parte on 10/11/2022, pending appeal against the lower court's ruling of 17/10/2024 dismissing his application to set aside that judgment. The respondent opposed, arguing that the suit land had gone through the full Land Adjudication Act dispute resolution process culminating in a final Ministerial decision, that the appellant had lost a related judicial review suit (Meru ELC JR No. 15 of 2019) whose taxed costs remained unpaid, and that the security offered (Kshs 47,385) was grossly inadequate for 15.86 acres allegedly occupied illegally since 2014, proposing instead about Kshs 15.86 million plus costs. Framing a single issue - whether the Order 42 rule 6(2) criteria for stay were met - the court applied the Court of Appeal's balancing principle in Absalom Dova v Tarbo Transporters and the security principle in Arun C Sharma v Ashane Raikundalia. It found substantial loss uncontroverted (the family of the late Nkuni M'Turuchiu still occupies the land and would be evicted); a 62-day delay was not timeous but excusable; and a crop valuation showing only 3 arable acres and annual yield of about Kshs 94,770 informed the quantum of security. The court granted a conditional stay: deposit of Kshs 350,000 within 30 days as security, stay for six months, lapsing thereafter unless expressly extended, with costs of the application in the appeal. Judgment delivered at Meru on 6 March 2025 by B M Eboso, J.
Key legal issues
#01
Whether the conditions for stay of execution pending appeal under Order 42 rule 6(2) were satisfied
Holding
Yes, but only on conditional terms: substantial loss was uncontroverted (eviction from suit land), the 62-day delay was excusable though not timeous, and security of Kshs 350,000 was ordered
Reasoning
The court applied the three-pronged test in Order 42 rule 6(2): substantial loss, reasonable delay and security. Substantial loss was not controverted since execution would evict the appellant's family from the suit land. The 62-day delay was held excusable. Balancing the parties' competing rights, the court fashioned a conditional stay secured by a monetary deposit, limited to six months.
p. 3
Legal principles established
#- Stay of execution balances the appellant's right of appeal against the respondent's right to enjoy the fruits of judgment
- Security under Order 42 rule 6 guarantees due performance of the decree and is not intended to punish the judgment debtor
Court orders
#- 1.The appellant shall deposit in Court, within 30 days, Kshs 350,000 as security for the due performance of the decree and orders in the Lower Court and in this Court
- 2.Subject to compliance by the Appellant, there shall be a stay of execution of the Judgment in Tigania Principal Magistrate Court MCELC No 23 of 2014 for a period of six (6) months
- 3.Unless expressly extended by the Court, the stay shall lapse upon expiry of six (6) months
- 4.Costs of the application shall be in the appeal
- On appeal from
- Tigania Principal Magistrate's Court (Environment and Land)
- Tigania PM ELC Case No. 23 of 2024 (also referred to as MCELC No. 23 of 2014)
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathuthu (Suing as the Legal representative of the Estate of Nkuni M’Turuchiu - Deceased) v Kiunga (Suing as the legal representative of the Estate of Stephen Michuki Kiunga - Deceased) (Environment and Land Appeal E084 of 2024) [2025] KEELC 1110 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal against ruling in Tigania PM ELC Case No. 23 of 2024/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1110/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.