Mbugua & another v Mwai (Environment and Land Appeal E105 of 2023) [2025] KEELC 4208 (KLR)
The bottom line
#The High Court dismissed the appeal and refused to stop execution, ruling the appellant failed to prove his claims or explain his delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion dated 3/02/2025 seeking lifting of warrants of arrest and stay of execution pending appeal is merited
- 2.Whether the trial Court erred in finding the 1st Respondent proved his case
Key legal issues
#Whether the application for stay of execution pending appeal was merited
The application failed for undue delay and lack of proof of substantial loss; no stay was granted
The impugned judgment was delivered on 13/06/2024 and warrants of arrest issued on 22/01/2025, yet the application was filed weeks later with no explanation. The Applicant claimed to have paid Kesh 100,000 monthly since 1/10/2024 but provided no proof. The conditions under Order 42 rule 6 - substantial loss, absence of unreasonable delay, and security - were not satisfied.
Whether the trial Court erred in finding the 1st Respondent proved his case
The ground of appeal failed; the trial court properly found the Respondent had proved his claim on a balance of probabilities
The 1st Defendant in cross-examination could not confirm how much he paid or give a breakdown, and produced no documents supporting his claim of payment. The 1st Respondent produced credible, consistent, unrefuted documents. Under Sections 107 to 109 of the Evidence Act, the burden was on the Appellant, which he failed to discharge.
Whether the Appellant could introduce a counterclaim and new grounds on appeal
No; the alleged application dated 6/06/2024 seeking to introduce a counterclaim does not appear on the record, and new issues not pleaded or canvassed at trial cannot be raised on appeal
The court scrutinized the proceedings and found no application to introduce a counterclaim; the Defendant closed his case on 23/04/2024 with no such application on record. No leave to adduce new evidence was sought. Following Openda v Ahn and Nyangau v Nyakwara as adopted in Kenya Hotels Limited v Oriental Commercial Bank, unpleaded and uncanvassed points cannot be taken on appeal.
Legal principles established
#- New issues not pleaded or canvassed before the trial court cannot be introduced on appeal
- A first appeal is by way of retrial and the court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
- Conditions for stay of execution pending appeal: substantial loss, no unreasonable delay, and security
Court orders
#- 1.No stay of execution granted; the Notice of Motion dated 3/02/2025 refused
- 2.The Appellant's Appeal dismissed entirely
- 3.The Judgment of the trial Court upheld
- 4.Costs awarded to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Ruiru
- RUIRU MCLELC CASE NO. 169 of 2023
- Jurisdiction invoked
- Appellate jurisdiction of the High Court over subordinate court decisions under the Civil Procedure Act (Order 42 Civil Procedure Rules)
Relief refused
#Setting aside of the decree and judgment of the Hon. C.K Kisiangani Senior Principal Magistrate delivered on 13th June 2024
The Respondent proved his case on a balance of probabilities; the Appellant's evidence was unsupported and the burden of proof was not discharged
Stay of execution pending appeal and lifting of warrants of arrest
The application was made after undue delay with no plausible explanation, and no proof of the alleged payments was provided
Costs
Costs awarded to the 1st Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the upshot is that the Appellant's Appeal is not merited and accordingly, the Appeal herein is disallowed and dismissed entirely and the Judgment of the trial Court is upheld. I award costs to the 1st Respondent.
For me this is undue delay and no plausible explanation was given for this delay. I am not inclined to grant any stay and especially given the circumstances of the case.
a new point which has not been pleaded or canvassed in the trial Court should not be allowed to be taken on appeal, unless the evidence establishes beyond reasonable doubt that the facts before the trial Court, if fully investigated, would support the point
this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.
The purpose of an Application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.
Issues in the judgment
#Inconsistent figures for the decretal sum within the judgment
Contradictory dates for filing of the stay application
Inconsistent identification of the trial court case number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua & another v Mwai (Environment and Land Appeal E105 of 2023) [2025] KEELC 4208 (KLR)", Case Analysis (2025). RUIRU MCLELC CASE NO. 169 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4208/eng@2025-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.