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ELCDismissedRuiru MCLELC No. E096 of 2021 (Appeal)· [2025] KEELC 3274 (KLR)

Landluck Investments Limited v Kiarii & another (Environment and Land Appeal E076 of 2024) [2025] KEELC 3274 (KLR)

Environment and Land Court
7 April 2025
MOMogeni
1,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to pause a land judgment because the losing party showed no real harm and offered no security, so the winner can enforce their rights.

What this practically means

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Executive summary

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By a Notice of Motion dated 31/07/2024, the Appellant, Ahmed Chege Gikera, sought a stay of execution and/or status quo of a judgment delivered on 04/07/2024 in Ruiru MCLELC No. E096 of 2021, pending the hearing and determination of his appeal. The trial court had declared the 1st Respondent the absolute owner of land parcel Ruiru Kiu Block 2/1164, directed cancellation of the title issued to the Appellant, and issued a permanent injunction against interference with the 1st Respondent's possession. The Appellant contended the appeal had high chances of success and would be rendered nugatory absent a stay. The 1st Respondent opposed, deposing that he had been in occupation since 2013, had fenced the land, built a structure, planted trees, cultivated crops, and buried family members on the property, and that the application was an attempt to take possession through the back door. The application was canvassed by written submissions. The court framed a single issue: whether stay of execution should issue. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the authorities in Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, the court held that the Appellant had not demonstrated substantial loss nor offered security for due performance of the decree, and that the proper course was to expedite the appeal. The Notice of Motion was dismissed with costs in the cause, and the Appellant was directed to file and serve a Record of Appeal within thirty days. Delivered virtually at Thika on 7 April 2025 by Mogeni J.

Key legal issues

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01

Whether the Appellant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application was unmerited because the Appellant failed to demonstrate substantial loss and did not offer security for due performance of the decree; the appeal should instead be expedited

Reasoning

The trial court had entered judgment for the 1st Respondent declaring him absolute owner of Ruiru Kiu Block 2/1164 and ordering cancellation of the Appellant's title. The Appellant claimed the appeal would be rendered nugatory, but did not show what substantial loss would follow if stay was declined, and offered no security. The court associated itself with Butt v Rent Restriction Tribunal and James Wangalwa v Cheseto, holding that a stay must be granted so an appeal is not rendered nugatory, but found those tests unmet.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.The Appellant's Notice of Motion dated 31/07/2024 is disallowed
  2. 2.Costs will be in the cause
  3. 3.The Appellant to file and serve a Record of Appeal in thirty (30) days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (7)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Magnate Ventures vs Simon Muatha & Another
    [2018] eKLR
  • Kotecha vs Forbros Tyres Treads Limited
    Misc Civ APP E083 OF 2024 eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Micheal Kareko Gatere vs Cooperative Merchant Bank Ltd & 3 Others
    [2017] eKLR
  • Global Tours & Travel Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • RWW vs EKW
    (Civil Suit 25 of 2012) 2019 KEHC 6523 (KLR) (Civ)
On appeal from
Ruiru Magistrates' Court (MCLELC)
MCL & E096 of 2021
Jurisdiction invoked
Order 42 Rule 6 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, "Landluck Investments Limited v Kiarii & another (Environment and Land Appeal E076 of 2024) [2025] KEELC 3274 (KLR)", Case Analysis (2025). Ruiru MCLELC No. E096 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3274/eng@2025-04-07

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