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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 4499 (KLR)

Kihara & 2 others v Kihara & 4 others (Environment & Land Case E014 of 2021) [2025] KEELC 4499 (KLR)

Environment and Land Court (presumed from the land subject-matter; the judgment does not print the court name)
16 June 2025
MGM.N. Gicheru
912 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by M.N. Gicheru, Judge, dated 16 June 2025 and delivered virtually at Murang'a, determines a notice of motion dated 29-7-2024 brought by the Defendants following a judgment of 4-7-2024 in which the Plaintiffs succeeded. The Defendants, through incoming counsel John Mwariri of Kituo Cha Sheria, sought leave for counsel to come on record after judgment and a stay of proceedings, judgment and decree pending appeal, citing substantial loss, the risk of a nugatory appeal, threatened eviction, their dependence on the suit land for subsistence and the burial of their parents on it. The Plaintiffs opposed, asserting the Defendants own adjacent land Loc.2/Makomboki/117, were not born or raised on the suit land, planted crops illegally, and buried their parents on L.R. No. 117. Adopting counsel's four issues and adding a fifth on leave for incoming counsel, the court found the motion filed timeously within the Section 79G timeline, but held that substantial loss was not proved since the Defendants own 2.6 hectares of alternative land and were untruthful in claiming no other home; that they could not offer adequate security given their pleaded modest means; and that, the Order 42 rule 6(2) conditions being conjunctive, failure to satisfy all three defeated the stay. Leave for incoming counsel to come on record was allowed as unopposed. The motion was allowed in terms of prayer 2 only, the stay of execution was dismissed, and costs were awarded to the Respondents.

Key legal issues

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01

Substantial loss

Holding

Not proved - the Applicants own alternative land, Loc.2/Makomboki/117 measuring 2.6 hectares (6.42 acres), and cannot claim to have no other place to call home

Reasoning

The court found the Applicants untruthful in asserting they had no other home. Since they possess their own adjacent parcel, executing the decree would not deprive them of a home, so the substantial-loss limb of Order 42 rule 6(2) failed.

p. 2
02

Unreasonable delay

Holding

The motion was filed timeously, within the Section 79G timeline

Reasoning

Judgment was delivered on 4-7-2024 and the motion filed on 29-7-2024, within the period contemplated by Section 79G of the Civil Procedure Act, so the delay condition was satisfied.

p. 2
03

Security for due performance of the decree

Holding

Not satisfied - the Applicants pleaded modest means and grandparents' status, showing they cannot give adequate security

Reasoning

The Applicants themselves pleaded financial instability, demonstrating inability to offer security. Since Order 42 rule 6(2) conditions are conjunctive, failure of this condition, together with failure on substantial loss, defeated the stay application.

p. 3
04

Leave for incoming counsel to come on record after judgment

Holding

Allowed - the application was served on the outgoing counsel and was not opposed

Reasoning

The court found service on outgoing counsel effected and no opposition lodged, so leave under Order 9 was granted as an unopposed procedural prayer.

p. 3

Legal principles established

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  • The three conditions in Order 42 rule 6(2) of the Civil Procedure Rules for a stay of execution are conjunctive and all must be satisfied

Court orders

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  1. 1.Leave granted to John Mwariri, advocate of Kituo Cha Sheria, to come on record for the Defendants
  2. 2.Prayer for stay of execution dismissed
  3. 3.Costs to the Respondents
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Orders 42 rule 6 and rule 9 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, "Kihara & 2 others v Kihara & 4 others (Environment & Land Case E014 of 2021) [2025] KEELC 4499 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4499/eng@2025-06-16

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