Gikoi v Kahiu & 4 others (Environment and Land Case E743 of 2017) [2025] KEELC 5756 (KLR)
The bottom line
#The Environment and Land Court in Thika paused execution of a land judgment because losing parties who plan an appeal can still lose everything if the property is sold first.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd and 5th Defendants demonstrated substantial loss
Substantial loss was demonstrated because the plaintiff, in possession, could dispose of the suit property, rendering the intended appeal academic.
The court noted it was not disputed that the plaintiff was in legal and actual possession of the suit property. If he disposed of it before the appeal was determined, the defendants' appeal would be rendered nugatory, which satisfies the substantial-loss requirement under Order 42 Rule 6(2).
Whether the application was filed without unreasonable delay
There was no inordinate delay; the roughly one-month delay was explained by the applicants' inability to obtain a copy of the judgment.
Judgment was delivered on 12th February 2025 and the application filed on 21st March 2025. The applicants explained the delay by letters to the Deputy Registrar requesting the judgment and by ultimately obtaining it from the Kenya Law website. The court accepted this explanation.
Whether security for the due performance of the decree was offered
No security was offered; the court nonetheless granted stay conditioned on a deposit of Kshs.300,000 within 30 days, failing which the stay lapses.
The defendants did not offer security, arguing it was unnecessary in a land dispute since the plaintiff was already in possession. Relying on Arun C. Sharma, the court recognised security as a guarantee of due performance of the decree and, to balance both parties' interests, granted a conditional stay requiring a deposit of Kshs.300,000.
Legal principles established
#- An application for stay of execution must satisfy the three conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree.
- Where disposal of the suit property before the appeal is heard would render the appeal nugatory, that constitutes substantial loss.
- A slight delay in filing a stay application that is adequately explained does not bar the grant of stay.
Court orders
#- 1.Stay of execution of the judgment delivered on 12th February 2025 granted pending appeal, on condition that the 2nd and 5th Defendants deposit Kshs.300,000 in court within 30 days, failing which the order for stay shall automatically lapse
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal from this court's judgment of 12th February 2025)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikoi v Kahiu & 4 others (Environment and Land Case E743 of 2017) [2025] KEELC 5756 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5756/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.