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ELCAllowedNot stated in the judgment text· [2025] KEELC 5418 (KLR)

Matiani t/a Benwill Auctioneers & another v Githaiya & another (Environment and Land Appeal E004 of 2025) [2025] KEELC 5418 (KLR)

High Court of Kenya
16 July 2025
ANA. Nyukuri
1,496 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court in Kakamega stopped a lower court order that would have forced the release of attached items, protecting the applicants' appeal.

What this practically means

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Executive summary

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The appellants moved the High Court at Kakamega by notice of motion dated 26th May 2025 seeking stay of execution of orders issued on 23rd May 2025 in Kakamega MC Civil Misc. Application No. E053 of 2025 pending appeal. The lower court had directed the appellants to unconditionally release items they had attached in execution of the 2nd appellant's proclamation against the 1st respondent, and had directed the OCS Kakamega Police Station to ensure compliance. The applicants contended the trial court lacked jurisdiction (the dispute touching on rent) and had ignored a preliminary objection on jurisdiction, and that they faced substantial loss including possible arrest. The 1st respondent, Patrick Githaiya, opposed, arguing no substantial loss was shown, execution is lawful, section 44 of the Civil Procedure Act protects tools of trade, and some items had already been released. A. Nyukuri J framed a single issue: whether the applicants met the Order 42 Rule 6 threshold. Applying Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, the court observed that imminent execution is not itself substantial loss, but found that because the impugned order compelled release of lawfully attached items and police enforcement, refusal of stay would render the appeal nugatory. The application was allowed; stay of the lower court's orders was granted pending determination of the appeal, with costs to the applicants.

Key legal issues

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01

Threshold for stay of execution pending appeal

Holding

The applicants satisfied the Order 42 Rule 6 threshold; the appeal challenges an order compelling unconditional release of lawfully attached items, and refusal of stay would render the appeal nugatory.

Reasoning

The court restated the Order 42 Rule 6 criteria: substantial loss, application without unreasonable delay, and security. Relying on Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, it noted that execution being set in motion is not itself substantial loss, but here the impugned order directed unconditional release of attached items and police enforcement, so compliance would hollow out the appeal.

p. 3

Legal principles established

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  • Imminent execution alone is not a basis for stay; the applicant must show substantial loss, absence of unreasonable delay, and willingness to furnish security.

Court orders

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  1. 1.Stay of execution of the orders issued in Kakamega Magistrates Court Miscellaneous Application No. E053 of 2025 dated 23rd May pending hearing and determination of the appeal
  2. 2.Costs of the application awarded to the applicants
On appeal from
Kakamega Magistrates Court (trial court)
Kakamega MC Civil Misc. Application No. E053 of 2025
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, "Matiani t/a Benwill Auctioneers & another v Githaiya & another (Environment and Land Appeal E004 of 2025) [2025] KEELC 5418 (KLR)", Case Analysis (2025). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5418/eng@2025-07-16

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