Inshwill Builders Engineering Company Limited v Mwihike Farmers Company Limited & 8 others (Environment and Land Case 1373 of 2014) [2025] KEELC 5959 (KLR)
The bottom line
#A Kenyan landowner lost its bid to pause a court judgment because it proved no real harm and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff/applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules
The application failed because no substantial loss was proven and no security for costs was offered, despite the application having been made without delay
Order 42 Rule 6 requires satisfaction that substantial loss may result absent a stay, that the application is made without unreasonable delay, and that security for due performance of the decree is given. The court found the applicant was not in occupation of the suit property, so the only thing it faced was the due process of registration flowing from the judgment, not substantial loss. No security was mentioned, casting doubt on the application's genuineness.
Whether the appeal is arguable and would be rendered nugatory without stay
The court declined to comment on the arguability of the intended appeal because no draft memorandum of appeal was furnished
While the applicant asserted the appeal was arguable and raised pertinent issues of law, the court could not verify this because it was not afforded a draft memorandum of appeal. The court thus treated this limb as unproven, reinforcing its finding that the conditions for stay were not met.
Legal principles established
#- For a stay of execution to be ordered there must be sufficient cause, substantial loss, no unreasonable delay and security for costs; failure to establish substantial loss and to offer security defeats the application
Court orders
#- 1.The notice of motion dated 19th September, 2024 is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Order 22 Rule 22, Order 42 Rules 6 and 7, Section 79G of the Civil Procedure Act, Order 51 Rules 1, 3, 4 & 13 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Inshwill Builders Engineering Company Limited v Mwihike Farmers Company Limited & 8 others (Environment and Land Case 1373 of 2014) [2025] KEELC 5959 (KLR)", Case Analysis (2025). Not stated in the judgment (notice of motion dated 19th September, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5959/eng@2025-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.