Kihu v Housing Finance Company (K) Limited & another (Environment & Land Case 176 of 2012) [2025] KEELC 4215 (KLR)
The bottom line
#A Nairobi land court paused execution of a Kshs. 30 million judgment, but only because the losing party agreed to deposit Kshs. 30 million as security within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Whether a preliminary objection lay against the Motion
The Order 9 Rule 9 point was moot as the court had already allowed prayer 2 of the Motion; the delay-in-service and incompetence grounds required ascertainment of facts and exercise of discretion, so they could not be raised as preliminary objections.
Applying Mukisa Biscuits, a preliminary objection must be a pure point of law decided on pleaded facts. The representation issue was resolved when the court allowed prayer 2 on 3rd February 2025. The timeliness and incompetence contentions required factual inquiry and judicial discretion, placing them outside the ambit of a preliminary objection, which therefore failed.
Whether an appeal existed for purposes of stay
A Notice of Appeal dated 30th November 2024 and lodged on 3rd December 2024 suffices; an appeal is deemed filed upon notice of appeal under Order 42 Rule 6(4).
Order 42 Rule 6(4) deems an appeal filed once notice of appeal is given under the Court of Appeal Rules. The Applicant produced a Notice of Appeal lodged on 3rd December 2024. Following Multipurpose Co-operative Society v Serser, the filing of a notice of appeal is deemed to institute an appeal, so the Motion was properly before the court.
Whether the decree contained a negative order incapable of stay
Although the suit was dismissed, the allowed counterclaim imposed positive obligations (payment of mesne profits and interest), so there was a positive order capable of being stayed.
The judgment directed the Applicant to pay mesne profits of Kshs. 204,000 per month from 6th December 2012 plus interest until he vacates the suit property, and costs. These are enforceable positive orders imposing clear obligations. The dismissal of the suit alone would have been a negative order, but here the counterclaim generated executable relief.
Whether the Applicant satisfied the prerequisites for stay under Order 42 Rule 6
Delay of one month was excused as reasonable; substantial loss was demonstrated given the approximately Kshs. 30 million mesne profits liability; security was fixed at Kshs. 30 million in a joint interest-earning account.
The application was filed one month after judgment, with no requirement to first obtain a certified copy of the judgment; the delay was not inordinate. Substantial loss was shown because the Applicant would have to pay over Kshs. 30 million which may not be recoverable if the appeal succeeds. For this money decree, security of Kshs. 30 million was imposed as a condition precedent to stay.
Legal principles established
#- A notice of appeal is deemed to institute an appeal for purposes of Order 42 Rule 6(4)
- A dismissal of a plaintiff's suit coupled with an allowed counterclaim yields positive, executable orders capable of being stayed
- After a valid public auction, a mortgagor's equity of redemption is extinguished and the only remedy lies in damages
Court orders
#- 1.A conditional order to stay the execution of the decree pending the hearing and determination of an intended appeal is granted
- 2.The stay is granted on condition that the Plaintiff deposits Kshs. 30 Million in a joint interest earning account in the names of the advocates for the Plaintiff and the 2nd Defendant within 60 days of the date of the Ruling
- 3.Each party shall bear his/its own costs
- Jurisdiction invoked
- Order 42 Rule 6 and Order 9 Rule 9 of the Civil Procedure Rules; Section 3 of the Environment and Land Court Act and Section 1A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihu v Housing Finance Company (K) Limited & another (Environment & Land Case 176 of 2012) [2025] KEELC 4215 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4215/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.