Kariuki v Tofina Rom Builders Limited & another (Environment and Land Case Civil Suit 334 of 2015) [2025] KEELC 3533 (KLR)
The bottom line
#The court paused enforcement of a Kshs 10.9 million judgment on land, but only because the losing party deposited the principal amount and will provide a bank guarantee within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution pending appeal under Order 42 Rule 6(2) were met
The court found no inordinate delay and held that the filing of the Notice of Appeal together with payment of the principal sum demonstrated good faith and ability to pay, justifying a stay
The court noted the Notice of Appeal was filed, establishing intention to appeal and conferring jurisdiction. The Applicants had deposited Kshs.8,700,000/= being the principal sum, leaving only interest in dispute. Payment of the principal was treated as evidence of good faith and ability to repay should the appeal fail, so on balance the interests of justice favoured granting the stay to allow the appeal to be ventilated.
Whether and in what form security for due performance of the decree should be ordered
The court, exercising its discretion, ordered security in the form of a bank guarantee for Kshs 10,962,000 to be deposited within 45 days, failing which the stay lapses
Relying on Gianfranco Manenthi, the court held that security is discretionary and for the court to determine. The Applicants had offered a bank guarantee in submissions. Balancing the parties' interests and the overriding objective, the court ordered a bank guarantee for the full decretal amount including interest, to protect the Respondent if the appeal fails, with the stay lapsing on default.
Legal principles established
#- A validly filed Notice of Appeal confers jurisdiction on the court to grant a stay pending appeal, subject to proof of substantial loss under Order 42 Rule 6(2)
- The purpose of a stay of execution pending appeal is to preserve the subject matter so that a successful appeal is not rendered nugatory
- Security for due performance of the decree is a matter for the court's discretion, not the applicant's willingness
Court orders
#- 1.Stay of execution of the judgment delivered on 24th April 2024 in Environment & Land Court Civil Case No. 334 of 2015 and any order arising therefrom, pending the hearing and determination of the intended appeal (prayer 3 granted)
- 2.Applicants to deposit with the Plaintifi/Respondent a bank guarantee in the sum of Kshs 10,962,000 within 45 days
- 3.In default of deposit of the bank guarantee, the order of stay lapses
- 4.Costs of the application to the Plaintifi
- On appeal from
- Environment & Land Court
- Civil Case No. 334 of 2015
- Jurisdiction invoked
- Order 42 of the Civil Procedure Rules (stay of execution pending appeal) plus all enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Omoke Omonyi v Charles Kamau Muthoni [2017] KEELC 1467 (KLR)[2017] KEELC 1467 (KLR)29 Sept 2017
Cite this brief
#Cite this brief
Caselaw, "Kariuki v Tofina Rom Builders Limited & another (Environment and Land Case Civil Suit 334 of 2015) [2025] KEELC 3533 (KLR)", Case Analysis (2025). Notice of Motion dated 9th July 2024 (arising from Environment & Land Court Civil Case No. 334 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3533/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.