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ELCPartially AllowedNot stated in judgment· [2025] KEELC 4263 (KLR)

Hika v Kagwima (Environment and Land Appeal E012 of 2024) [2025] KEELC 4263 (KLR)

High Court of Kenya
28 May 2025
MKMUGO KAMAU
1,092 words in judgment
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The bottom line

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The High Court paused execution of a land ruling, but only partially: the losing parties keep their homes yet must stop farming and deposit Kshs. 75,000 as security.

What this practically means

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Executive summary

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The Appellants applied under Order 22 Rule 25, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules for a stay of execution of the decree issued on 12/3/2025, by which the High Court (sitting on appeal from the Engineer Principal Magistrate, Hon. Ms E. Wanjala) dismissed their entire appeal in a land dispute over parcel No. NYANDARUA/MALEWA 166. The Appellants, who filed a Notice of Appeal to the Court of Appeal, feared eviction from land they claim to have occupied since the 1970s, contending the appeal would be rendered nugatory without a stay and that no prejudice would befall the Respondent, who was not in occupation. The Respondent, Robert Wairiri Kagwima, opposed, deponing that the decree was incapable of being stayed, that the judgment merely restored the parties to their original positions and reaffirmed his proprietorship, and that he should enjoy the fruits of successful litigation. The court observed the decree was non-monetary, that eviction could occur at any time, and that the Respondent had already lost more than five decades of use of his land without mesne profits. It nonetheless found the Appellants' fear of a nugatory appeal real and undertook a balancing exercise to preserve the land pending appeal. The court granted a conditional, partial stay: the title remains in the Appellants' names unencumbered; they remain confined to their homesteads; cultivation ceases after the 2025 maize harvest with the land surrendered to the Respondent; no trees may be cut; obstruction of the Respondent's cultivation from 2026 triggers eviction with the help of the area O.C.S.; and the Appellants must deposit Kshs. 75,000/= as security within 90 days, failing which the stay lapses. No costs order was made.

Key legal issues

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01

Substantial loss and nugatory appeal

Holding

The court found the Appellants' fear that their appeal would be rendered nugatory to be real, given the risk of eviction from land they had occupied since the 1970s

Reasoning

The decree was non-monetary and eviction could be executed at any time, defeating the intended appeal. The court accepted that if the Appellants were evicted and later succeeded on appeal, restoration would be impractical, satisfying the substantial-loss threshold under Order 42 Rule 6.

p. 2
02

Security for a non-monetary decree

Holding

The court ordered the Appellants to deposit Kshs. 75,000/= in court as security for costs within 90 days, failing which the stay would lapse automatically

Reasoning

Order 42 Rule 6(2)(b) requires security for due performance of the decree. Even though the decree was non-monetary, the court fashioned a security condition, and attached further conditions confining the Appellants' occupation and cultivation to preserve the Respondent's position pending appeal.

p. 3

Legal principles established

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  • Stay of execution pending appeal is governed by Order 42 Rule 6, requiring substantial loss, application without unreasonable delay, and security for due performance of the decree
  • The court will balance the interests of both parties in a non-monetary decree to preserve the subject matter pending appeal

Court orders

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  1. 1.The Title Deed in respect of land parcel No NYANDARUA/MALEWA 166 shall remain in the names of the Appellants as it is today and shall not be transferred nor be charged until the hearing and determination of the intended Appeal
  2. 2.The Appellants shall remain on the suit land and in particular the space they occupy and which they have put up their home(s) and no more, and shall strictly confine themselves there
  3. 3.At the end of the year and after harvesting the current maize crop, the Appellants shall not cultivate the suit land any more and will surrender it to the Respondent
  4. 4.The Appellants shall not cut any tree(s) on the suit land
  5. 5.Should the Appellants make it difficult for the Respondent to cultivate the suit land from 2026 or cause any trouble, they will be forthwith evicted with the help of the area O.C.S.
  6. 6.The Appellants shall deposit in Court the sum of Kshs. 75,000/= as security for costs within 90 days failure to which the stay will automatically lapse

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
On appeal from
Engineer Principal Magistrate's Court
null
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 25 and Order 51 Rule 1 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, "Hika v Kagwima (Environment and Land Appeal E012 of 2024) [2025] KEELC 4263 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4263/eng@2025-05-28

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