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ELCDismissedNotice of motion dated 10-12-2024, arising from appeal against Kangema MCELC/08/2020· [2025] KEELC 3449 (KLR)

Muthee v Gichomo (Environment and Land Appeal E051 of 2024) [2025] KEELC 3449 (KLR)

Environment and Land Court
28 April 2025
MGM.N. Gicheru
858 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to pause a refund order, confirming all three stay-of-execution conditions must be met — including providing security.

What this practically means

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Executive summary

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This ruling by M.N. Gicheru J of the Environment and Land Court at Murang'a, delivered virtually on 28 April 2025, determines a notice of motion dated 10 December 2024 by the Appellant seeking stay of execution of a judgment delivered on 29 November 2024 in Kangema MCELC/08/2020 pending appeal. The trial court had found that the suit land, L.R. No. Loc 12/Kanyenyaini/1469, was matrimonial property which the Appellant's late husband could not sell without her consent, rendering the sale to the Respondent void, and ordered the Appellant to refund Kshs. 300,000/= partly paid as purchase price. The Appellant argued that since the transaction was void no refund should have been ordered, and that she had limited resources, and that the appeal would be rendered nugatory. The Respondent opposed, alleging abuse of process and offering to accept a deposit of Kshs. 300,000/= as security. Applying Order 42 rule 6(2), the court held that substantial loss, absence of unreasonable delay and security must all exist cumulatively. While the appeal was filed timeously, the court found no substantial loss: this was a money decree, the suit land was not in danger of auction, and the Appellant holds both the land and the money received, owing the sum as her husband's estate representative. The Appellant also could not be exempted from providing security. The motion was dismissed with costs in the cause.

Key legal issues

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01

Substantial loss

Holding

A money decree against an applicant who retains both the land and the purchase money does not occasion substantial loss

Reasoning

The court found the Appellant has the suit land and the money her husband received; as representative of his estate she owes the Respondent the decretal sum. The land's value exceeds the decree and the land is not in danger of auction. If the appeal succeeds, she can recover the decretal sum, so no substantial loss was proved.

p. 2
02

Unreasonable delay

Holding

The application and appeal were filed timeously; judgment was 29-11-2024 and appeal filed 17-12-2024

Reasoning

The court assessed the interval between delivery of judgment and filing of the appeal as expeditious and reasonable, so this condition was satisfied.

p. 2
03

Security for due performance

Holding

An applicant for stay cannot be exempted from providing security

Reasoning

The Appellant sought to be excused from providing security. The court held that security is a statutory condition of stay and no applicant can place herself outside it.

p. 2

Legal principles established

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  • All three conditions for stay of execution under Order 42 rule 6(2) — substantial loss, no unreasonable delay, and security — must exist cumulatively
  • A money decree generally does not occasion substantial loss where the applicant will be able to recover the decretal sum if the appeal succeeds

Court orders

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  1. 1.The notice of motion dated 10-12-2024 is dismissed
  2. 2.Costs in the cause
On appeal from
Magistrates' Court, Kangema
MCELC/08/2020
Jurisdiction invoked
Orders 42 rule 6, 51 rule 1 Civil Procedure Rules 2010, Sections 1A, 1B and 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, "Muthee v Gichomo (Environment and Land Appeal E051 of 2024) [2025] KEELC 3449 (KLR)", Case Analysis (2025). Notice of motion dated 10-12-2024, arising from appeal against Kangema MCELC/08/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3449/eng@2025-04-28

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