Karanja v Ndungu (Environment and Land Appeal E090 of 2024) [2025] KEELC 4897 (KLR)
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
#Key legal issues
#Whether the Appellant demonstrated substantial loss
She did not; her affidavit merely expressed fear that the Respondent may execute
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.
Whether the application was made without unreasonable delay
Yes, the application was filed 13 days after judgment
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.
Whether the Appellant was willing to furnish security for costs
No; she failed to comply with the interim security order and gave no indication of what security she could offer
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.
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.The applications dated June 4, 2024 and June 10, 2024 are dismissed
- 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.