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ELCAllowedNot stated in the judgment· [2025] KEELC 4033 (KLR)

Rayit & 2 others v Rayit (Environment & Land Case E159 of 2023) [2025] KEELC 4033 (KLR)

Environment and Land Court of Kenya
14 May 2025
MOMogeni
1,537 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court paused execution of a judgment pending appeal, requiring modest security and a quick appeal record to keep the appeal alive.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (Mogeni J) on a Notice of Motion dated 24/07/2024 by the Defendant/Applicant, Rajinder Singh Rayit, seeking stay of execution of the judgment delivered by Mogeni J on 13th June 2024 pending an intended appeal to the Court of Appeal, under Order 42 Rule 6 of the Civil Procedure Rules. The application was opposed by the Plaintiff/Respondent, Avatar Singh Rayit, through a replying affidavit sworn on 2/10/2024, and both parties filed written submissions. The court framed a single issue: whether the orders for stay of execution pending appeal were merited. Applying the three conditions in Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security - the court found that the applicant, who has resided on the suit property with his family for some 40 years while the plaintiffs live in Australia and the United Kingdom, had demonstrated a reasonable likelihood of loss if stay was not granted, and that the respondent would suffer no corresponding loss. The application was held to have been made without undue delay, and the court exercised its discretion to order modest security, taking into account the applicant's circumstances. The court allowed prayers (2) and (3) of the application, conditional upon the applicant depositing Kshs. 100,000 in court within 30 days as security, failing which the stay lapses, and compiling, filing and serving a complete Record of Appeal within 60 days. The court ordered that there shall be no costs.

Key legal issues

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Whether the conditions for stay of execution pending appeal under Order 42 Rule 6(2) were satisfied

Holding

The court found that the applicant demonstrated a reasonable likelihood of substantial loss, that the application was brought without undue delay, and exercised its discretion to order modest security as a condition for the stay

Reasoning

The court applied the three-pronged test in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. The applicant had resided on the property for 40 years with his family, while the plaintiffs reside abroad and would suffer no loss if stay was granted. The application, filed after the 13 June 2024 judgment, was found timely despite being dated 24/07/2024. The court declined to require onerous security, taking into account the applicant's circumstances, and fixed conditional stay terms to compel diligence in filing the appeal record.

p. 4

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so that a successful appeal is not rendered nugatory
  • In exercising its discretion the Court should always opt for the lower rather than the higher risk of injustice
  • The Court has discretion to order that security be furnished for the due performance of a decree where it thinks fit

Court orders

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  1. 1.The Application dated 24/07/2024 is allowed in terms of Prayers (2) and (3)
  2. 2.The Defendant/Applicant shall deposit Kshs. 100,000.00 in Court as security for the due performance of the Decree within thirty (30) days from the date of this Ruling
  3. 3.Failure to comply with the security deposit order, the stay shall automatically lapse
  4. 4.The Defendant/Applicant shall within sixty (60) days from the date of this Ruling compile, file and serve upon the Respondent a complete Record of Appeal
  5. 5.There shall be no costs
On appeal from
Court of Appeal (intended appeal)
Jurisdiction invoked
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, "Rayit & 2 others v Rayit (Environment & Land Case E159 of 2023) [2025] KEELC 4033 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4033/eng@2025-05-14

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