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ELCDismissed· [2025] KEELC 4947 (KLR)

Mang’eli v Katimu (Environment and Land Appeal E021 of 2024) [2025] KEELC 4947 (KLR)

High Court of Kenya
3 July 2025
EOE. K. Obaga
1,346 words in judgment
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The bottom line

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Kenya's High Court dismissed a stay of execution because the appellant could only be forced to pay costs, not suffer real loss while his appeal proceeded.

What this practically means

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Executive summary

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This ruling by Hon. E. K. Obaga, Judge, of the High Court determines a Notice of Motion dated 11th December 2024 in which the Appellant/Applicant, Anthony Kyalo Mang'eli, sought a stay of execution pending his appeal against the judgment of Hon. M. Mutua delivered on 8th November 2024 in CM ELC No. E018 of 2022 (Sammy Amingo Katimu v Anthony Kyalo Mang'eli), in which the trial court granted a permanent injunction restraining the Applicant from trespassing on the Respondent's land, with costs to the Respondent. The Applicant argued that his appeal had overwhelming chances of success, that the trial court absolved him of blame yet imposed costs and an injunction, and that the Respondent was a man of straw incapable of refunding costs. He relied on Butt v Rent Restriction Tribunal and James Wangalwa & Another v Agnes Naliaka Cheseto. The Respondent opposed, asserting he was a man of means as owner of the suit property, that no substantial loss was demonstrated, and that stay would merely enable continued trespass. Considering the sole issue of whether the Order 42 Rule 6(2) threshold was met, the court found the application filed promptly but held that the Applicant had not demonstrated substantial loss: the only execution possible was on costs, which would not render the appeal nugatory, and the Respondent, owner of the suit property, was not a man of straw. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application was dismissed: although filed promptly, the Applicant failed to demonstrate substantial loss since the only execution possible was on costs, which would not render the appeal nugatory, and the Respondent was not shown to be a man of straw.

Reasoning

The court applied the three Order 42 Rule 6(2) conditions. Promptness was satisfied, as the application was filed three days after judgment. On substantial loss, the court examined the reliefs granted: an injunction restraining trespass and costs. Since only costs could be executed, non-stay would not make the appeal academic. The Respondent, as owner of the suit property with no evidence of intent to sell, could not be considered a man of straw incapable of refunding costs.

p. 3

Legal principles established

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  • The conditions for stay of execution pending appeal under Order 42 Rule 6(2) are: no unreasonable delay, demonstration of substantial loss, and security for due performance of the decree.
  • Demonstration of substantial loss is the essential element in an application for stay of execution.

Court orders

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  1. 1.The Notice of Motion dated 11th December 2024 seeking stay of execution pending appeal was dismissed
  2. 2.Costs of the application awarded to the Respondent
On appeal from
Chief Magistrate's Court (CM ELC)
CM ELC No. E018 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Mang’eli v Katimu (Environment and Land Appeal E021 of 2024) [2025] KEELC 4947 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4947/eng@2025-07-03

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