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ELCPartially AllowedThika E.L.C Case No. 100 of 2017· [2025] KEELC 3577 (KLR)

Kweri v Kamau (Environment & Land Case 100 of 2017) [2025] KEELC 3577 (KLR)

Environment and Land Court
5 May 2025
2,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a buyer to pay KES 600,000 into Court after the seller refused payment, and refused to halt enforcement of the judgment.

What this practically means

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Executive summary

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This ruling by Mogeni J of the Environment and Land Court, Thika, determined two competing applications arising from a judgment dated 27/04/2023 in a specific performance suit concerning Thika Municipality Block 6/703, sold under an agreement dated 5/12/2014 for Kesh 2.1 million, of which Kesh 600,000 remained unpaid. The plaintiff's application dated 11/10/2023, brought under Sections 1A, 1B, 3A and 38 of the Civil Procedure Act, sought leave to deposit the Kesh 600,000 in Court because the defendant refused to accept the bankers cheques tendered by his advocate. The defendant's application dated 23/05/2024, brought under Section 3A and Order 42 of the Civil Procedure Rules, sought a stay of execution of the judgment pending appeal E448 of 2023 (Nairobi). Applying the principles in Butt v Rent Restriction Tribunal and Masisi Mwita v Damaris Wanjiku Njeri, the court found that although the one-year delay in filing the stay application was not inordinate, the defendant failed to demonstrate substantial loss, relying only on the threat of execution, and offered no security. Neither party filed submissions despite directions. The court allowed the plaintiff's deposit application and dismissed the defendant's stay application, awarding the costs of both applications to the plaintiff. The defendant remains at liberty to pursue the appeal, but the decree may be satisfied through the Court in the interim.

Key legal issues

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01

Conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application failed as the applicant did not demonstrate substantial loss and did not offer security, notwithstanding the court's finding that the delay was not inordinate

Reasoning

The court applied the settled principles in Butt v Rent Restriction Tribunal and Masisi Mwita v Damaris Wanjiku Njeri, holding that the three conditions must be considered jointly, with substantial loss being paramount. The applicant merely asserted an arguable appeal without demonstrating the loss she would suffer, and offered no security.

p. 5
02

Whether the one-year delay in bringing the stay application was inordinate

Holding

The delay of one year was unexplained but the court found it not undue or inordinate

Reasoning

Judgment was delivered on 27/04/2023 and the application filed on 23/05/2024. Although the applicant did not explain the delay, the court exercised its discretion to find the delay was not inordinate, then proceeded to determine the other conditions.

p. 5
03

Whether the plaintiff should be permitted to deposit the decretal sum in Court where the judgment debtor refuses to accept payment

Holding

The application was merited since the defendant refused to accept the payment and no stay orders were in place

Reasoning

The court found that upon judgment, the plaintiff was to pay Kesh 600,000 to the defendant who was to transfer the suit property, but the defendant's advocate returned the bankers cheques without instructions. The transfer had not happened and there were no stay orders, so the plaintiff could deposit the sum in Court to satisfy the decree.

p. 2

Legal principles established

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  • An application for stay of execution pending appeal must satisfy the conditions of reasonable delay, substantial loss, and security, with substantial loss being paramount
  • The mere threat of execution does not constitute substantial loss for purposes of Order 42 Rule 6

Court orders

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  1. 1.The Notice of Motion Application dated 11/10/2023 is merited and the Plaintiff/Applicant is awarded the costs of the Application
  2. 2.The Notice of Motion Application dated 23/05/2024 is unmerited and is dismissed with costs awarded to the Respondent
  3. 3.For avoidance of doubt, the costs relating to both applications are awarded to the Plaintiff as Applicant in the first Application and Plaintiff/Respondent in the second Application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 38
  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2), 6(4)
  • Court of Appeal RulesRule 5; Rule 82(1) and (2)

Cases cited (4)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR, Civil Appeal No. 107 of 2015
  • Halal & Another v Thornton & Turpin Ltd
    null
  • Hassan Guyo Wakalo v Straman EA Ltd
    [2013]
Jurisdiction invoked
Sections 1A, 1B, 3A and 38 of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules

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, "Kweri v Kamau (Environment & Land Case 100 of 2017) [2025] KEELC 3577 (KLR)", Case Analysis (2025). Thika E.L.C Case No. 100 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3577/eng@2025-05-05

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