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ELCDismissedNot stated in the judgment· [2025] KEELC 5617 (KLR)

Kungu v Kungu (Environment and Land Case 11 of 2023) [2025] KEELC 5617 (KLR)

Environment and Land Court ( inferred from subject matter; judgment does not state court name)
29 July 2025
866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court refused to pause enforcement of a land ruling because the applicant showed no real loss and the three legal conditions for a stay must all be met together.

What this practically means

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Executive summary

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This is a ruling on the Defendant's notice of motion dated 27-3-2025, seeking stay of execution of the court's ruling of 18-3-2025 and all consequential orders pending an intended appeal. The Defendant, described as an 80-year-old ailing woman, feared eviction from the suit land and demolition of her residence, and argued she would suffer irreparable loss with nowhere else to live. The Plaintiff opposed, contending that the Defendant holds only a life interest, that the court had ordered implementation of the decree rather than her eviction, that only houses built after the court order were to be demolished, and that the Deputy Registrar's report showed she does not reside on the suit land. M.N. Gicheru J dismissed the motion. The court held that the Defendant was not being evicted and that only the house built in breach of the court order was to be demolished, making the intended appeal one founded on falsehood. Applying Order 42 rule 6(2) of the Civil Procedure Rules, the court found the applicant satisfied the no-delay condition but failed the substantial loss and security conditions, since all three must co-exist and the motion's aim was to frustrate the decrees in Thika Succession Cause No. 431 of 2009 and the court's own decree. The motion was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the Defendant would suffer substantial loss if stay is not granted

Holding

No substantial loss was shown: the Defendant is not being evicted from the suit land and only the house built in breach of the court order is to be demolished, while her old house remains intact.

Reasoning

The court found that the ruling of 18-3-2025 did not order the Defendant's eviction or demolition of her old house; only the house constructed in breach of the court order was to be demolished. An appeal premised on eviction was therefore based on falsehood, and the Applicant would suffer no loss since her old house is intact.

p. 2
02

Whether the application was made without unreasonable delay and whether security was offered

Holding

The motion met the delay condition, having been filed on 27-3-2025, less than 10 days after the ruling of 18-3-2025, but failed the security/substantial-loss test as its aim was to frustrate existing decrees.

Reasoning

The court accepted the motion was filed promptly within about 10 days of the ruling, satisfying the second condition. However, since all three conditions under Order 42 rule 6(2) must be satisfied cumulatively, failure on substantial loss and the security condition (aim of frustrating the decrees in Thika Succession Cause No. 431 of 2009 and the court's decree) meant the motion failed the test overall.

p. 2

Legal principles established

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  • Under Order 42 rule 6(2) of the Civil Procedure Rules, an applicant for stay of execution must simultaneously satisfy three conditions: substantial loss, absence of unreasonable delay, and provision of security.
  • An appeal founded on falsehood cannot succeed; only an appeal grounded on credible and cogent facts can withstand legal scrutiny.

Court orders

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  1. 1.The notice of motion dated 27-3-2025 is dismissed with costs to the Plaintiff
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act, Order 22 rule 22, Order 42 and Order 51 rule 1 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution

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, "Kungu v Kungu (Environment and Land Case 11 of 2023) [2025] KEELC 5617 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5617/eng@2025-07-29

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