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ELCPartially AllowedNot stated in the excerpt (motion dated 5/03/2025)· [2025] KEELC 6126 (KLR)
Thuo t/a Export Solve Agencies v Atenya & 7 others (Environment and Land Case Civil Suit 85 of 2019) [2025] KEELC 6126 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#A Kenyan landowner appealing a lost land case got no stay of execution, but the court froze all sales, transfers and subdivisions until her appeal is decided.
What this practically means
#Executive summary
#The plaintiff, dissatisfied with the court's judgment of 5/02/2025 dismissing her claim over land parcel LR. No. 12715/594 (IR 47715), moved this court by a notice of motion dated 5/03/2025 seeking a stay of execution of the judgment, decree and consequential orders pending her appeal in Nairobi Court of Appeal Civil Appeal No. E156/2025. The motion, anchored on Article 159(2)(d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 42 Rule 6(1) and 51 Rule 1 of the Civil Procedure Rules, was supported by her affidavit on the grounds that the appeal was arguable, that she would suffer irreparable loss, and that the suit property required preservation. The 4th defendant, a successful litigant in possession and occupation of the suit property, opposed the motion through the affidavit of Eric Chege Kamau, asserting that no substantial loss had been demonstrated and offering to maintain the status quo, with security of Kshs. 2,000,000/= proposed. The 2nd defendant's motion dated 24/02/2025 was expunged from the record for non-payment of court fees and non-compliance with directions. The court framed a single issue: whether the plaintiff met the threshold for a stay of execution pending appeal. Applying Order 42 Rule 6 principles and Kenya Shell Limited v Benjamin Karuga Kibiru, the court found prompt filing but no substantial loss, as the 4th defendant held the upheld title and was in occupation. However, invoking Rhoda Mukuma v John Abuoga, the court adopted the 4th defendant's status quo proposal: no subdivision, sale or transfer, and no interference with the 4th defendant's use, occupation and possession, conditional on the plaintiff depositing Kshs. 300,000/= in a joint interest-earning account within 30 days, failing which execution may proceed. Costs were awarded to the 4th defendant.
Key legal issues
#01
Whether the plaintiff met the Order 42 Rule 6 threshold for stay of execution pending appeal
Holding
Stay refused; the plaintiff failed to demonstrate substantial loss since the 4th defendant holds the upheld title and is in occupation, but status quo orders were granted on terms.
Reasoning
The court set out the Order 42 Rule 6 criteria: no undue delay, demonstration of substantial loss, and security. Delay was not an issue as the motion was filed within a month. On substantial loss, the 4th defendant's occupation and title, upheld in the judgment, meant no substantial loss would ensue. The nugatory-appeal test was held to be for the Court of Appeal, not this court.
p. 4
Legal principles established
#- Substantial loss is the fulcrum upon which an order for stay of execution can be granted
- Where a party is exercising a right of appeal, the court may preserve the status quo until the appeal is heard
Court orders
#- 1.Status quo on land parcel no. LR. No. 12715/594 (IR 47715) shall be maintained pending hearing and determination of the substantive appeal
- 2.Status quo means no subdivision, sale or transfer of the suit property pending the appeal
- 3.The 4th defendant's use, occupation and possession of the suit property shall not be interfered with by any of the parties
- 4.Orders (a) and (b) issued subject to the plaintiff depositing Kshs. 300,000/= in an interest-earning joint account in the names of the advocates on record within 30 days, in default the 4th defendant at liberty to execute the decree
- 5.Costs awarded to the 4th defendant
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya, Sections 1A, 1B & 3A of the Civil Procedure Act, Orders 42 Rule 6(1) and 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuo t/a Export Solve Agencies v Atenya & 7 others (Environment and Land Case Civil Suit 85 of 2019) [2025] KEELC 6126 (KLR)", Case Analysis (2025). Not stated in the excerpt (motion dated 5/03/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6126/eng@2025-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.