Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (arising from Thika CMELC Case No. 153 of 2018)· [2025] KEELC 4897 (KLR)

Karanja v Ndungu (Environment and Land Appeal E090 of 2024) [2025] KEELC 4897 (KLR)

Environment and Land Court
25 June 2025
1,969 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a stay of execution because the appellant met none of Order 42 Rule 6's three conditions, particularly failing to deposit ordered security.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court (J. M Onyango, J) determined two consolidated applications by the Appellant in an appeal against the judgment and decree of the Thika CMELC in Case No. 153 of 2018 delivered on 22nd May 2024. The first application dated 4th June 2024 sought a stay of execution pending appeal; on 5th June 2024 interim stay was granted on condition that the Appellant deposit half the decretal sum (Kshs. 7.5 million) within 30 days. Before the inter partes hearing, the Appellant filed a second application dated 10th June 2024 seeking review of the security terms; on 24th June 2024 the court reduced the deposit to Kshs. 4.5 million payable within 21 days, which the Appellant did not pay. The Respondent opposed both applications, asserting he purchased the suit property at a public auction in 2004 and that the litigation was an abuse of process; his preliminary objection on jurisdiction was abandoned after the appeal was transferred from the High Court. The sole issue was whether stay should be granted and whether more time should be given to deposit security. Applying Order 42 Rule 6 of the Civil Procedure Rules, the court held the Appellant failed to demonstrate substantial loss - her affidavit expressed only a fear of execution, and the matrimonial-home claim appeared only in submissions, which are not evidence. Although the application was timely, she showed no willingness to furnish security and defied the interim deposit orders. Both applications were dismissed with costs to abide the appeal.

Key legal issues

#
01

Whether the Appellant demonstrated substantial loss

Holding

She did not; her affidavit merely expressed fear that the Respondent may execute

Reasoning

The court examined the supporting affidavit of 4th June 2024 and found it only deponed a fear of execution, which per Wangalwa is not substantial loss since execution is a lawful process. The claim that the suit property was matrimonial property appeared only in submissions and, being no evidence, could not establish irreparable effect on the Appellant's essential core as a successful party.

p. 4
02

Whether the application was made without unreasonable delay

Holding

Yes, the application was filed 13 days after judgment

Reasoning

Judgment was delivered on 22nd May 2024 and the application filed on 4th June 2024. The court agreed with the Appellant's counsel that this constituted no undue delay, satisfying the timeliness limb of Order 42 Rule 6, but this alone did not suffice as all conditions must be met simultaneously.

p. 4
03

Whether the Appellant was willing to furnish security for costs

Holding

No; she failed to comply with the interim security order and gave no indication of what security she could offer

Reasoning

After being granted interim stay conditional on depositing half the decretal sum, the Appellant neither deposited the amount nor the reduced Kshs. 4.5 million within 21 days, instead seeking review without stating what she could afford. A party unwilling to comply with court orders is undeserving of discretionary relief, so the security limb failed.

p. 4

Legal principles established

#
  • Submissions by counsel are not evidence and cannot substitute for proof on affidavit
  • The three conditions for stay of execution under Order 42 Rule 6 must be met simultaneously
  • The purpose of stay of execution is to preserve the subject matter of the appeal so it is not rendered nugatory, while not impeding a successful party from enjoying the fruits of judgment

Court orders

#
  1. 1.The applications dated June 4, 2024 and June 10, 2024 are dismissed
  2. 2.The costs of the applications shall abide the appeal
On appeal from
Thika Chief Magistrate's Court (CMELC)
Case No. 153 of 2018
Jurisdiction invoked
Appellate jurisdiction over the lower court under the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (appeal initially filed in the High Court and transferred to this court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Karanja v Ndungu (Environment and Land Appeal E090 of 2024) [2025] KEELC 4897 (KLR)", Case Analysis (2025). Not stated in judgment (arising from Thika CMELC Case No. 153 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4897/eng@2025-06-25

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