Waithaka (Suing as the Personal Representative of the Estate of Martin Francis Thuku Waithaka - Deceased) v Ouko & 3 others (Environment and Land Case Civil Suit E148 of 2021) [2025] KEELC 6060 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should grant a stay of execution pending lodging and determination of the intended Appeal by the 4th Defendant
- 2.Whether in the alternative the Court should grant an order of status quo/injunction pending appeal
Key legal issues
#Whether stay of execution pending appeal was merited
Refused; the applicant had not lodged a substantive appeal and the application was premature and delayed
Order 42 Rule 6(2) requires substantial loss, application without unreasonable delay, and security for due performance. Beyond a Notice of Appeal, the 4th Defendant demonstrated neither a filed appeal nor the Court of Appeal cause number. The application was also filed after delay, so stay pending an intended appeal would be sought in futility and the threshold was not met.
Whether an injunction or status quo order pending appeal should issue in the alternative
Refused; such orders are contingent on an appeal being on file and none existed
Adopting Patricia Njeri & 3 Others v National Museum of Kenya, the court noted injunctions pending appeal are discretionary and guided by principles including whether the appeal is arguable and whether refusal renders it nugatory. Since no appeal had been lodged, the alternative relief could not stand and the threshold was not met.
Legal principles established
#- An application for stay of execution pending an intended appeal is premature where no substantive appeal has been lodged
- An injunction or status quo order pending appeal presupposes that an appeal has been lodged
Court orders
#- 1.The 4th Defendant's Notice of Motion application dated 10th March 2025 is dismissed
- 2.Costs of the application awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rules 6(2) and 6 of the Civil Procedure Rules, 2010 (stay of execution and injunction pending appeal)
Relief refused
#Stay of execution of the judgment and decree of 12th February 2025 pending the intended appeal
The 4th Defendant has not lodged a substantive appeal, and the application is premature and made after delay
Alternative order of status quo/injunction pending appeal
Order 42 envisages such orders where an appeal has been lodged; no appeal exists
Costs
Application dismissed with costs to the Plaintiff
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the 4th Defendant’s Notice of Motion application dated the 10th March, 2025 unmerited and will dismiss it with costs
since the 4th Defendant is yet to lodge an Appeal in the Court of Appeal, the instant application for stay of execution pending Appeal is premature
Order 42 of the Civil Procedure Rules envisages it can be issued in instances where an Appeal has been lodged
Issues in the judgment
#Internal inconsistency in the judgment: title payment period stated as 'fourteen (45) days'
Internal inconsistency: court recites the injunction relates to LR No. 3589/6 while the application refers to L.R. No. 3589/53
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waithaka (Suing as the Personal Representative of the Estate of Martin Francis Thuku Waithaka - Deceased) v Ouko & 3 others (Environment and Land Case Civil Suit E148 of 2021) [2025] KEELC 6060 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6060/eng@2025-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.