Mukusya & another v Kaunda alias Teresia Kanini Kaunda (Environment and Land Appeal E076 of 2024) [2025] KEELC 6013 (KLR)
The bottom line
#The Environment and Land Court in Machakos halted an eviction pending appeal, requiring only Kshs. 300,000 as security—not the full decree.
What this practically means
#Executive summary
#Key legal issues
#Whether the stay application was filed without undue delay
The motion was filed promptly, four days after the impugned judgment
The court found that the motion dated and filed 17/12/2024 came just four days after the judgment of 13/12/2024, satisfying the delay criterion under Order 42 Rule 6 without any unreasonable delay by the appellants.
Whether the appellants demonstrated substantial loss and that the appeal would be rendered nugatory
Yes; the 2nd appellant runs a hardware shop on the suit property as his only source of income, and eviction would cause substantial loss and render the appeal nugatory
The court accepted, uncontradicted, that the 2nd appellant operates his only business on the suit property. Relocation is costly and distorts business operations; eviction is effectively irreversible, so the appeal if successful would be rendered nugatory.
Whether the appellants offered adequate security
Yes; the court fixed security at Kshs. 300,000/=, rejecting the respondent's proposal as excessive
Though the appellants proposed no sum, that omission does not oust the court's discretion to set security. The respondent's figure of Kshs. 12,400,000/- plus monthly rentals treated security as security for the decretal amount and as rent, which contradicts the appellant's case as purchaser; the court fixed Kshs. 300,000/= as sufficient security for costs.
Whether the appeal is arguable
Yes; the grounds questioning impeachment of title, innocent purchaser for value and whether the property was matrimonial are arguable
Citing APA Homes, the court held an arguable appeal need not succeed but must merit consideration. The grounds of appeal on title impeachment and the innocent purchaser defence satisfied the threshold, though the notice that the appellants' submissions were expunged for lateness is noteworthy.
Legal principles established
#- Substantial loss is a qualitative concept, not quantified by a mathematical formula; it refers to any loss of real worth or value as opposed to a nominal loss
- Relocation of a business from suit premises may cause substantial loss; an applicant who runs his only business on the suit property satisfies the substantial loss test
- Security for costs need not be for the entire decretal amount; failure to propose a particular sum does not divest the court of jurisdiction to fix security
- An arguable appeal is not one which must necessarily succeed but one worthy of consideration by the court
Court orders
#- 1.Stay of execution of the judgment rendered on 13/12/2024 in Machakos CM ELC Civil Case No. E086 of 2023 granted, subject to the appellants depositing Kshs. 300,000/= in an interest-earning joint account in the names of the advocates for the parties within 45 days, in default of which the respondent may execute
- 2.The appellants to file and serve the record of appeal within 45 days
- 3.The appeal is admitted and the lower court record to be called for
- 4.Costs shall abide by the outcome of the appeal
- 5.A mention date to be issued before the deputy registrar
- On appeal from
- Chief Magistrate's Court, Machakos (ELC)
- CM ELC Civil Case No. E086 of 2023
- Jurisdiction invoked
- Article 259(c) & (d) of the Constitution; Sections 1A, 1B, 3A and 66 of the Civil Procedure Act; Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukusya & another v Kaunda alias Teresia Kanini Kaunda (Environment and Land Appeal E076 of 2024) [2025] KEELC 6013 (KLR)", Case Analysis (2025). Notice of Motion dated 17/12/2024 (appeal from Machakos CM ELC Civil Case No. E086 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6013/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.