Waweru v Njuguna & 4 others (Environment & Land Case 394 of 2017) [2025] KEELC 1215 (KLR)
The bottom line
#The Environment and Land Court paused execution of a land judgment pending appeal, but only after the losing party deposited their title deeds in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
There was no unreasonable delay; the Motion filed on 27th August 2024 came two days before the lapse of the 30-day temporary stay granted with the judgment of 31st July 2024.
The court applied Order 42 Rule 6(2) and authorities on what constitutes unreasonable delay, including Jaber Mohsen Ali v Priscillah Boit and Utalii Transport v NIC Bank. Since the Motion was filed within the period of the temporary stay and no allegation of unreasonable delay was made by the Respondent, the condition was satisfied.
Whether substantial loss would result if stay is not granted
Substantial loss was established because execution of the judgment would extinguish the existing titles and vest a new parcel in the Plaintiff, who could then dispose of it, rendering the appeal nugatory.
The judgment mandated cancellation of the titles to Dagoretti/Riruta/6629 and 6630, amalgamation and sub-division to create a 0.25 acre parcel to be transferred to the Plaintiff. Upon registration, the Plaintiff would acquire the statutory powers under Sections 24 and 25 of the Land Registration Act, including the right to sell or charge the land, which would take the subject matter outside the reach of the appeal.
What security for due performance of the decree should be given
Deposit of the title deeds in court and registration of an inhibition against the titles would suffice; the Plaintiff's demand for Kshs 14,800,000 was not adopted.
Relying on Arun C Sharma v Ashana Raikundalia and Focin Motorcycle v Ann Wambui Wangui, the court held that the purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor, and that the form of security is discretionary. Considering that the Plaintiff is in occupation of the suit property, deposit of the title deeds plus an inhibition adequately protects the decree.
Whether the court should assess the arguability of the intended appeal
No; Order 42 Rule 6 does not require assessment of arguability, and it would be improper for the court to evaluate the arguability of an appeal from its own decision.
The Defendants argued that their appeal was arguable with high chances of success. The court held that its jurisdiction derives from Order 42 Rule 6, which does not contemplate arguability as a condition, and disregarded submissions on that head as procedurally improper and logically untenable.
Legal principles established
#- The jurisdiction to grant stay of execution pending appeal under Order 42 Rule 6 does not require the court to assess the arguability of the intended appeal.
- Substantial loss may arise where execution of a judgment requiring cancellation and transfer of title would place the suit property beyond the purview of the appeal.
- Security for due performance of the decree need not be framed in rigid or absolute terms; the court has discretion to determine the appropriate security.
Court orders
#- 1.A stay of execution of the Judgment and Orders of 31st July, 2024 be and is hereby granted pending the hearing and determination of the intended appeal to the Court of Appeal.
- 2.An order does hereby issue that an inhibition be registered against the title to the suit property Dagoretti/Riruta/6629 and Dagoretti/Riruta/6630 prohibiting any dealings with the title pending the hearing and determination of the intended appeal.
- 3.The Defendants shall deposit in court as a condition precedent for the grant of stay of execution of the Judgment pending appeal the title deeds for parcel numbers Dagoretti/Riruta/6629 and Dagoretti/Riruta/6630 within 15 days from the date of this Ruling.
- 4.Each party to bear his own costs.
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Njuguna & 4 others (Environment & Land Case 394 of 2017) [2025] KEELC 1215 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC suit at Nairobi; Ruling on Motion dated 27th August, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1215/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.