Boro & 3 others (Suing for and on Behalf of Emmaus Welfare Society) v Ndung'u (As the Chairperson of Urutagwo Mwiruti Women Group) (Environment & Land Case 60 of 2015) [2025] KEELC 4859 (KLR)
The bottom line
#A Kenyan court confirmed it can still hear stay-of-execution requests after an appeal is filed, but only if appellants deposit the full awarded costs as security.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - functus officio after filing of appeal
The court retains jurisdiction to hear a stay of execution application notwithstanding the filing of an appeal in the Court of Appeal; functus officio bars only merit-based re-engagement, not incidental post-judgment applications
The court held that functus officio prevents reopening of a finally determined suit but does not foreclose incidental proceedings such as execution or stay of execution pending appeal. Stay may be sought either in the trial court under Order 42 Rule 6 or in the Court of Appeal under Rule 5(2)(b). Indeed, a stay application presupposes a pending appeal, so the existence of the appeal cannot defeat the trial court's jurisdiction.
Res judicata vis-à-vis earlier stay of taxation application
The application is not barred by res judicata because the earlier application dated 31st January 2023 concerned stay of taxation proceedings, a separate and distinct issue from stay of execution of the taxed costs
Applying the test for issue res judicata from Kennedy Mokua Ongiri, the court examined the earlier decision and found it dealt only with whether taxation of the Bill of Costs would affect the appeal. The present application concerns execution of the taxed costs after taxation, a distinct issue, so the bar in Section 7 of the Civil Procedure Act does not apply.
Substantial loss under Order 42 Rule 6
The plaintiffs failed to demonstrate substantial loss; mere execution of a lawful decree does not amount to substantial loss
Relying on James Wangalwa & Another v Agnes Naliaka Cheseto, the court reiterated that execution being set in motion is a lawful process and by itself does not constitute substantial loss. Save for the payment of the taxed costs, the plaintiffs did not articulate any loss they would suffer if the application was declined. The applicants thus did not show they would suffer substantial loss should the application be disallowed.
Security for due performance of the decree
Security under Order 42 Rule 6 is at the court's discretion; the applicant's stated willingness to provide security suffices, and the court conditioned the stay on deposit of the taxed sum
The court accepted the purpose of security as guaranteeing due performance of the decree as ultimately binding, not punishing the judgment debtor. Discretion lies with the court, and it is sufficient that the applicant indicated willingness to pay security. The court therefore allowed the stay conditional on deposit of Kshs. 224,270 within 30 days, held as security pending the appeal.
Legal principles established
#- The doctrine of functus officio does not preclude a court from dealing with post-judgment applications incidental to the final judgment, including stay of execution applications pending appeal
- An application for stay of execution requires an applicant to establish that the application was made without unreasonable delay, that substantial loss will result, and that security for due performance of the decree has been given
Court orders
#- 1.A stay of execution of the taxed costs is granted on condition that the Plaintiffs deposit the entire taxed costs being Kshs. 224,270/= with the court within 30 days from the date hereof as security pending the hearing and determination of the pending appeal
- 2.In default of compliance, the stay shall lapse automatically without further reference to this court
- 3.Costs of the application to be borne by each party
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 95 of the Civil Procedure Act and Order 42 Rule 6(2) and (3), Order 50 Rules 1 to 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boro & 3 others (Suing for and on Behalf of Emmaus Welfare Society) v Ndung'u (As the Chairperson of Urutagwo Mwiruti Women Group) (Environment & Land Case 60 of 2015) [2025] KEELC 4859 (KLR)", Case Analysis (2025). ELC 60 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4859/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.