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ELCDismissedNot stated in judgment (pending appeal from suit decided 16th September 2024)· [2025] KEELC 3331 (KLR)

Mwangi (Suing as the Administrator of the Estate of Stephen Mwangi Maina - Deceased) v Ndungu & another (Environment & Land Case 174 of 2019) [2025] KEELC 3331 (KLR)

Environment and Land Court (first-instance court seized of stay application)
24 April 2025
CMC.G. Mbogo
2,227 words in judgment
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The bottom line

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A Kenyan land court refused to pause execution of a judgment because the losing party failed to prove she would suffer real, substantial loss.

What this practically means

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Executive summary

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The plaintiff/applicant moved this court by notice of motion dated 14th October 2024, brought under Order 42 Rule 6, Order 22 Rule 22 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act, seeking a stay of execution of the judgment delivered on 16th September 2024 and the resulting decree, pending her filed appeal. She contended that the appeal was arguable, that the application was made without delay, and that the defendants might cancel the title and dispose of the suit property, LR. No. 12672/79, to third parties, rendering the appeal nugatory. She offered security in the form of a bank guarantee. The 1st and 2nd defendants/respondents opposed via grounds of opposition and a replying affidavit, asserting the applicant had not demonstrated substantial loss, was not in occupation of the property, and that security should be Kshs. 38,000,000/-, the value of a contemplated sale. In submissions, both parties addressed substantial loss, security, and the balance of convenience, citing overlapping authorities on stay principles. The court framed a single issue: whether the applicant was entitled to a stay of execution pending appeal. It applied the three conditions in Order 42 Rule 6(2) and the Court of Appeal's guidance in Masisi Mwita v Damaris Wanjiku Njeri. It accepted that the application was made without delay but found no evidence of actual and real substantial loss, holding the risk of disposal to third parties insufficient and unpersuasive. The court therefore declined to consider security, dismissed the motion and awarded costs to the defendants/respondents.

Key legal issues

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01

Whether the applicant demonstrated substantial loss warranting stay of execution pending appeal

Holding

The application was dismissed because substantial loss was not proved; allegations that the property might be disposed of to third parties were insufficient

Reasoning

The applicant merely asserted she would suffer substantial loss. The court found the claim that the defendants might dispose of the suit property to third parties unpersuasive and unsupported by evidence of any actual and real loss. The applicant was not in occupation and derived no livelihood from the property. In balancing the right of appeal against the respondents' right to enjoy the fruits of judgment, the court found the Order 42 Rule 6 conditions unmet and declined to proceed to the question of security.

p. 5

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, bring the application without unreasonable delay, and furnish security for due performance of the decree

Court orders

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  1. 1.The notice of motion dated 14th October 2024 is dismissed with costs to the defendants/respondents

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 22 Rule 22

Cases cited (12)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited
    HCCC 795 of 1997
  • Jason Ngumba Kagu & 2 Others v Intra Africa Assurance Co. Limited
    [2014] eKLR
  • Rhoda Mukuma v John Abuoga
    [1988] eKLR
  • Wellington Lusweti Barasa & 47 Others v Lands Limited & Another
    [2015] eKLR
  • Charles Wahome Sethi v Angela Wairimu Gethi
    [2008] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Michael Ntouthi Mitheu v Abraham Kivondo Musau
    [2021] eKLR
  • Machira t/a Machira & Co. Advocates v East African Standard
    [2002] eKLR
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • Vishram Rouji Halal v Thornton & Turpin
    Civil Appeal No. 15 of [1990] KLR 365
  • Hassan Guyo Wakolo v Straman E.A. Ltd.
    [2013]
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules, Sections 3A and 63(e) 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, "Mwangi (Suing as the Administrator of the Estate of Stephen Mwangi Maina - Deceased) v Ndungu & another (Environment & Land Case 174 of 2019) [2025] KEELC 3331 (KLR)", Case Analysis (2025). Not stated in judgment (pending appeal from suit decided 16th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3331/eng@2025-04-24

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