Kungu v Kungu (Environment and Land Case 11 of 2023) [2025] KEELC 5617 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Defendant would suffer substantial loss if stay is not granted
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.
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.
Whether the application was made without unreasonable delay and whether security was offered
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.