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ELCAllowedNot stated in judgment (Makueni ELC; arise from Kilungu MCELC E003/2021)
Mainga v Mwikya (Environment and Land Appeal E021 of 2022) [2025] KEELC 2939 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Applicant, who was the Plaintiff in Kilungu MCELC E003 of 2021, moved the Environment and Land Court at Makueni by Notice of Motion dated 25th July 2024 seeking stay of execution of the ELC judgment of 12th June 2024 (which upheld the subordinate court's judgment) and of the subordinate court decree, plus an injunction restraining the Respondent from dealing with parcels MAKUENI/UVALENI/1621, 1095 and 1724 pending an intended appeal to the Court of Appeal (Civil Appeal No. E630 of 2024). He argued substantial loss, no unreasonable delay, willingness to give security, and that execution through survey, excision and transfer would render the appeal nugatory. The Respondent opposed, calling the application an abuse of process and a ploy to deny him the fruits of his 2022 judgment. The court framed a sole issue: whether the Applicant demonstrated the threshold for the orders sought. Relying on Order 42 Rule 6 and the principles in Butt v Rent Restriction Tribunal, Kenya Shell Ltd v Kibiru and Venture Capital v Consolidated Bank, the court found the Applicant had an arguable appeal, that uncontroverted averments showed substantial loss, that the one-and-a-half-month delay was not inordinate, and that security was offered. The court granted a stay of both decrees pending the appeal, conditioned on deposit of Kshs. 100,000 as security within 30 days, failing which the stay lapses, with costs abiding the appeal.
Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has demonstrated the threshold for issuance of a stay of execution and injunction pending appeal
Key legal issues
#01
Whether the Applicant met the conditions for stay of execution under Order 42 Rule 6
Holding
The Applicant satisfied the test: substantial loss, no inordinate delay, arguable appeal, and offer of security
Reasoning
The court found an arguable appeal demonstrated by the annexed memorandum and record of appeal; the Respondent did not controvert the averments that execution would occasion substantial loss; the application was filed about one and a half months after judgment, which was not inordinate; and security of Kshs. 100,000 was offered, satisfying all conditions in Order 42 Rule 6(2).
p. 5
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate substantial loss, absence of unreasonable delay, and offer security for the due performance of the decree
- The right of appeal is balanced against the successful party's right to enjoy the fruits of the judgment
Court orders
#- 1.Stay of execution of the judgment and decree of the ELC and of the subordinate court in Kilungu MCELC E003/2021 pending hearing and determination of Civil Appeal No. E630 of 2024 (Court of Appeal)
- 2.Applicant to deposit Kshs. 100,000 in court as security within 30 days
- 3.In default of the security deposit, the stay orders to lapse automatically
- 4.Costs to abide the outcome of Civil Appeal No. E630 of 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
EO
majorityWrote the judgment
- On appeal from
- Principal Magistrate's Court (Kilungu)
- Kilungu MCELC E003 of 2021
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 13(7)(a) of the Environment and Land Court Act; Order 42 Rule 6(1) and (6), Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That an order for stay of execution of the judgment and decree herein as well as the judgment and decree of the subordinate court in KILUNGU MCELC E003/2021 PETER NZIKALI MAINGA V PHILIP NDOKO MWIKYA is hereby granted pending the hearing and determination of Civil Appeal No. E630 of 2024 at the Court of Appeal.
The Applicant shall deposit in court Kshs. 100,000/= as security for the due performance of the eventual decree within Thirty (30) days from the date hereof.
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented.
Whereas the Applicant has an undoubted right of appeal from the judgment of this court, the Respondent has an equally undoubted right to enjoy the fruits of its judgment.
Issues in the judgment
#minor
Internal inconsistency on the date of the ELC judgment: described as delivered on 12th June 2024 in one passage and 13th June 2024 in another
minor
Case number of the present application is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mainga v Mwikya (Environment and Land Appeal E021 of 2022) [2025] KEELC 2939 (KLR)", Case Analysis (2025). Not stated in judgment (Makueni ELC; arise from Kilungu MCELC E003/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2939/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.