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)
The bottom line
#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
#Executive summary
#Key legal issues
#Substantial loss
Eviction of the Appellant from land he has occupied since before 2007 would cause substantial loss and render the appeal nugatory.
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).
Undue delay
The application was filed timeously, one day after the Appellant received a copy of the judgment on the CTS portal.
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.
Security
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.
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.
Legal principles established
#- 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
#- 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.The Appellant shall file a Record of Appeal within 60 days
- 3.The costs of the application shall be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.