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ELCAllowedNotice of Motion dated 9th September 2024 (arising from Githunguri CMELC No. 14 of 2021)· [2025] KEELC 3252 (KLR)

Njuguna v Kahuha (Acting as the Legal Representative of the Estate of James Kahuha Thuo (Deceased)) & another (Environment and Land Appeal E099 of 2024) [2025] KEELC 3252 (KLR)

High Court of Kenya
8 April 2025
1,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court stopped an eviction until an appeal is heard, but only after the appellant deposits Kshs. 100,000 in court within 21 days.

What this practically means

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Executive summary

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By a Notice of Motion dated 9th September 2024 under section 10 of the Judicature Act, Rule 3 of the High Court (Practice and Procedure) Rules, Orders 52, 40 and 51 of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act, the Appellant sought a stay of execution of the judgment of Hon. P. Muholi delivered on 8th August 2024 in Githunguri CMELC No. 14 of 2021 pending appeal. The Appellant claimed ownership of parcel Githunguri/Gathangari/2242, deposing that a 2007 sale agreement with the Respondents' deceased father was rescinded and converted into a ten-year lease, that the deceased later agreed by an agreement dated 30th December 2011 to retransfer the property unconditionally, and that eviction would cause him irreparable loss and render the appeal nugatory. The 1st Respondent opposed, asserting her legitimate ownership and right to enjoy the fruits of the judgment, including the eviction order granted. The court identified a single issue: whether a stay of execution should be granted. Applying Order 42 Rule 6(2), it found substantial loss established because eviction could allow the Respondents to sell or build on the property, rendering the appeal nugatory; the application was filed timeously; and on security, the court exercised its discretion to craft a conditional order. The application was allowed, with a conditional stay on a Kshs. 100,000/- deposit within 21 days, an obligation to file a Record of Appeal within 60 days, and costs in the cause.

Key legal issues

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01

Substantial loss

Holding

Eviction of the Appellant from land he has occupied since before 2007 would cause substantial loss and render the appeal nugatory.

Reasoning

The trial court ordered the Appellant's eviction from the suit property. If evicted, the Respondents could sell or construct on the property before the appeal is heard, rendering the appeal nugatory. The court therefore found substantial loss established under Order 42 Rule 6(2).

p. 3
02

Undue delay

Holding

The application was filed timeously, one day after the Appellant received a copy of the judgment on the CTS portal.

Reasoning

Judgment was delivered on 8th August 2024 and the application filed on 9th September 2024. The Appellant explained he filed immediately upon receipt of the judgment via the CTS portal, and the court found it not in dispute that the application was filed timeously.

p. 4
03

Security

Holding

Although the Appellant did not offer security, the court has discretion to craft appropriate orders and conditioned the stay on a Kshs. 100,000/- deposit.

Reasoning

The Appellant did not state willingness to provide security for costs. The court nonetheless exercised its discretion in the interest of justice and the overriding objective of the Civil Procedure Act, granting a conditional stay requiring a deposit of Kshs. 100,000/- within 21 days.

p. 4

Legal principles established

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  • An order for stay of execution under Order 42 Rule 6(2) requires substantial loss, absence of undue delay, and security for due performance of the decree.
  • Execution being a lawful process does not by itself amount to substantial loss; the applicant must show execution will irreparably affect the essential core of the appeal.
  • The purpose of a stay pending appeal is to preserve the subject matter so the appeal, if successful, is not rendered nugatory, while weighing the successful litigant's right to the fruits of judgment.

Court orders

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  1. 1.A stay of execution is granted on condition that the Appellant deposits Kshs. 100,000/- in court within 21 days from the date of the ruling, failing which the order for stay shall automatically lapse
  2. 2.The Appellant shall file a Record of Appeal within 60 days
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Judicature Actsection 10
  • High Court (Practice and Procedure) RulesRule 3(1) and (2)
  • Civil Procedure Rules 2010Orders 52, 40, 51
  • Civil Procedure Actsection 3A
  • Civil Procedure Rules 2010Order 42 Rule 6(2)

Cases cited (5)

  • Elena D. Korir vs Kenyatta University
    (2014) eKLR
  • Halal & another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    [2013]
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    (2012) eKLR
  • RWW v EKW
    [2019] eKLR
On appeal from
Principal Magistrate's Court at Githunguri
Githunguri CMELC No. 14 of 2021
Jurisdiction invoked
Section 10 of the Judicature Act; Order 42, 40, 51 of the Civil Procedure Rules 2010; section 3A of the Civil Procedure Act

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, "Njuguna v Kahuha (Acting as the Legal Representative of the Estate of James Kahuha Thuo (Deceased)) & another (Environment and Land Appeal E099 of 2024) [2025] KEELC 3252 (KLR)", Case Analysis (2025). Notice of Motion dated 9th September 2024 (arising from Githunguri CMELC No. 14 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3252/eng@2025-04-08

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