Musyoka v Kungu (Environment and Land Appeal E063 of 2024) [2025] KEELC 5670 (KLR)
The bottom line
#The High Court in Machakos refused to pause execution of a Kshs. 700,000 judgment because the appellant showed neither an arguable appeal nor any loss a stay would prevent.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the conditions for stay of execution under Order 42 rule 6
The application was dismissed because the applicant failed to fulfil the conditions for stay of execution
The court found no laches, as the application was filed within about a month of the judgment. However, the respondent asserted the judgment had already been executed and the applicant evicted, meaning there was nothing to stay. The court also found the applicant was forum shopping through multiple suits and that the draft memorandum of appeal raised no arguable appeal, nor would refusal of stay render any appeal nugatory.
Whether the intended appeal was arguable
The draft memorandum of appeal did not raise an arguable appeal
The court examined the draft memorandum of appeal attached to the application and concluded the grounds of appeal did not meet the arguability threshold set out in the authorities, which requires the applicant to show the appeal is not frivolous and that its success would not be rendered nugatory by refusal of stay.
Whether the application was brought without unreasonable delay
The applicant was not guilty of delay
Judgment was delivered on 29th October 2024 and the application filed on 23rd November 2024, a period the court found did not amount to laches. This condition was thus satisfied, but the other conditions were not, so the application still failed.
Legal principles established
#- An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security for due performance of the decree
- Both limbs - an arguable appeal and the appeal not being rendered nugatory - must be demonstrated for a stay to be granted
Court orders
#- 1.The application for stay of execution pending appeal was dismissed with costs
- 2.It is so ordered
- On appeal from
- Magistrates' Court, Machakos
- CMCC 1142 of 2013
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159(2)(a) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kariuki v Gikandu & 3 others (Environment and Land Appeal E037 of 2026) [2026] KEELC 2185 (KLR)[2026] KEELC 2185 (KLR)21 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Musyoka v Kungu (Environment and Land Appeal E063 of 2024) [2025] KEELC 5670 (KLR)", Case Analysis (2025). Machakos CMCC 1142 of 2013 (Appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5670/eng@2025-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.