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ELCPartially AllowedNakuru ELC Case No. 85 of 2018 (Notice of Motion dated 28th April 2025)· [2025] KEELC 5169 (KLR)

Kimani v Kimani (Environment and Land Case 85 of 2018) [2025] KEELC 5169 (KLR)

Environment and Land Court
10 July 2025
AOANTONY O. OMBWAYO
2,419 words in judgment
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The bottom line

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A Kenyan landowner won a stay of execution against a property transfer, but only after paying Kshs. 300,000 security and committing to file his appeal fast.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Antony O. Ombwayo J, dated 10th July 2025) determines the Plaintiff/Applicant's Notice of Motion dated 28th April 2025 seeking a stay of execution of the judgment delivered by L.A. Omollo J on 11th April 2024 in Nakuru ELC Case No. 85 of 2018, pending an intended appeal. The Applicant, Andrew Kimani, argued through affidavit and submissions that the Respondent was moving to execute the decree by having the suit property transferred to her, that re-transfer would be costly, that the property risked being sold to third parties rendering the appeal nugatory, and that there was no unreasonable delay since he had obtained leave to appeal out of time on 9th April 2025 and filed his Notice of Appeal the following day. The Respondent opposed, contending the judgment was self-executing, that substantial loss was speculative, that no security had been offered, and that leave to appeal out of time does not confer stay as of course. The court framed a single issue: whether an order of stay of execution pending appeal should issue. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the principles in RWW v EKW, Absalom Dora and Siegfried Busch, the court found the delay cured by the grant of leave, held that substantial loss was demonstrated because ownership and possession would be at the core of the appeal and the register must be preserved, and accepted the Applicant's willingness to offer security. The court granted the stay on conditions: deposit of Kshs. 300,000/= as security in a joint interest-earning account within 21 days, and filing of a record of appeal within 60 days with the appeal to be moved towards finalisation within 180 days, failing which the stay would automatically lapse.

Key legal issues

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Whether the Applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2)

Holding

Stay granted: no unreasonable delay (leave to appeal out of time was sought and promptly acted on), substantial loss demonstrated because the register must be preserved, and Applicant willing to offer security

Reasoning

The court found the delay was cured by leave granted on 9th April 2025, after which the Notice of Appeal was filed immediately. Because the substratum of the suit is land and ownership and possession will be central to the appeal, preserving the register constitutes substantial loss. The Applicant's willingness to offer security allowed the court to fix Kshs. 300,000/= with timelines and automatic lapse on default.

p. 4

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay and security for costs, balanced against the successful litigant's right to the fruits of judgment
  • Where ownership and possession of land are at the core of an appeal, preservation of the register pending appeal can constitute substantial loss

Court orders

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  1. 1.Stay of execution of the judgment delivered on 11th April 2024 granted on conditions
  2. 2.Applicant to deposit Kshs. 300,000/= as security for costs in a fixed joint interest-earning account in the names of both counsel within 21 days
  3. 3.Applicant to compile, file and serve a record of appeal within 60 days and move the Court towards finalisation of the appeal within 180 days
  4. 4.Automatic lapse of the stay if either condition is not met within the fixed timelines
Jurisdiction invoked
Order 42 Rule 6(1) and (2) 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, "Kimani v Kimani (Environment and Land Case 85 of 2018) [2025] KEELC 5169 (KLR)", Case Analysis (2025). Nakuru ELC Case No. 85 of 2018 (Notice of Motion dated 28th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5169/eng@2025-07-10

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