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ELCAllowedNanyuki MCELC No. 8 of 2020 (appeal) - ruling on notice of motion dated 17.9.24· [2025] KEELC 1140 (KLR)

Kendi v Wagate & 2 others (Environment and Land Appeal E022 of 2024) [2025] KEELC 1140 (KLR)

Environment and Land Court
5 March 2025
LMLucy N. Mbugua
387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nanyuki court paused an eviction pending appeal, but only because the appellant moved fast and agreed to deposit Kshs 100,000 as security within 45 days.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 17.9.24 in which the appellant in an appeal from Nanyuki MCELC No. 8 of 2020 sought a stay of execution of the judgment delivered on 22.8.2024, which contained an eviction order requiring her to remove her structures within 30 days. The 1st respondent opposed the application through a replying affidavit dated 25.10.2024, contending that the threshold for the orders was not met as no security had been offered and that she stood to be prejudiced. The 2nd respondent did not oppose the application and the 3rd respondent did not respond. Framing the question as whether to grant a stay of execution, the court adopted the three-part test in Magnate Ventures v Simon Mutua Muatha & another: substantial loss, absence of unreasonable delay, and security for the due performance of the decree. The court found that the presence of an eviction order in the judgment meant the appellant stood to suffer substantial loss, and that the application had been filed timeously, within less than a month of the judgment. Allowing the application, the court ordered a stay of execution of the judgment dated 22.8.2024 on condition that the appellant deposits Kshs. 100,000 in court within 45 days, with the stay limited to six months. Costs of the application were ordered to abide the outcome of the appeal.

Key legal issues

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Whether the appellant demonstrated substantial loss and promptness so as to warrant a stay of execution pending appeal

Holding

The court found that the eviction order in the judgment meant the appellant stood to suffer substantial loss, and that the application was filed timeously; the stay was granted on conditions of a deposit and a time limit.

Reasoning

The court applied the three-part test from Magnate Ventures v Simon Mutua Muatha: substantial loss, absence of unreasonable delay, and security. A perusal of the judgment revealed an eviction order against the applicant, which sufficed for substantial loss. The application was filed less than a month after the judgment, satisfying the delay requirement. The court then granted a conditional stay, requiring a Kshs. 100,000 deposit within 45 days and limiting the stay to 6 months.

p. 2

Legal principles established

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  • An applicant seeking stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and must furnish such security as the court orders.

Court orders

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  1. 1.Stay of execution of the judgment dated 22.8.2024 on condition that the applicant deposits Kshs. 100,000 in court within 45 days from the date of the ruling
  2. 2.The stay shall last for a period of 6 months
  3. 3.The costs of the application shall abide the outcome of the appeal
On appeal from
Magistrates' Court (MCELC), Nanyuki
Nanyuki MCELC No. 8 of 2020
Jurisdiction invoked
Order 46 Rule 6(2) 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, "Kendi v Wagate & 2 others (Environment and Land Appeal E022 of 2024) [2025] KEELC 1140 (KLR)", Case Analysis (2025). Nanyuki MCELC No. 8 of 2020 (appeal) - ruling on notice of motion dated 17.9.24. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1140/eng@2025-03-05

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