Waita & 2 others v Waita (Legal Representative of the Estate of Daniel Mutuse Waita – Deceased) (Environment and Land Appeal E009 of 2023) [2025] KEELC 3840 (KLR)
The bottom line
#A Kenyan land court refused to pause execution of a judgment because the losing parties showed no harm, delayed, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants met the threshold under Order 42 Rule 6(2) for stay of execution pending appeal
The threshold was not met: no substantial loss shown, no demonstration that the appeal would be rendered nugatory, and no offer of security.
The court held that while the Applicants had an undoubted right of appeal, the Respondent equally had the right to enjoy the fruits of her judgment. The Applicants did not controvert that the suit property is registered in the name of Daniel Mutuse Waita (Deceased) and that the Respondent has been in exclusive occupation. They neither showed substantial loss nor offered security, so the stay could not issue.
Whether temporary injunction pending appeal should issue
Refused; the Applicants did not show a prima facie case, irreparable harm, or that refusal would render the appeal nugatory.
Guided by Venture Capital & Credit Limited v Consolidated Bank of Kenya Ltd and the Giella v Cassman Brown principles, the court found the Applicants had not demonstrated any interest in the suit property, which is registered in the name of the Respondent's deceased husband, nor that execution would render their appeal nugatory. The discretion is therefore exercised against the Applicants.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and must offer security for the due performance of the decree.
- Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution.
- A temporary injunction pending appeal will be refused where the applicant cannot show that refusing it would render the appeal nugatory.
Court orders
#- 1.The Notice of Motion dated 27th October, 2023 is dismissed
- On appeal from
- Subordinate court (Kilungu)
- Kilung ELC No. E39 of 2019
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010 (appeal from subordinate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waita & 2 others v Waita (Legal Representative of the Estate of Daniel Mutuse Waita – Deceased) (Environment and Land Appeal E009 of 2023) [2025] KEELC 3840 (KLR)", Case Analysis (2025). Kilungu ELC Appeal (arising from Kilung ELC No. E39 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3840/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.