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ELCPartially AllowedNot stated in the excerpt (Notice of Motion dated 21st August 2024)· [2025] KEELC 6439 (KLR)

Kamungu & another v Mutwamburi & 13 others (Environment and Land Case 58 of 2020) [2025] KEELC 6439 (KLR)

Environment and Land Court
23 September 2025
JOJ. M ONYANGO
1,592 words in judgment
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The bottom line

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The Thika Environment and Land Court paused enforcement of a land judgment pending appeal, but the losing parties must deposit Kshs 3 million within 21 days or lose that protection.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Thika determined a Notice of Motion dated 21st August 2024 by the Defendants (Applicants) seeking stay of execution of the court's judgment and decree of 5th August 2024, pending an intended appeal to the Court of Appeal. The application was brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 1C and 3A of the Civil Procedure Act. The 8th Applicant deponed that the Applicants would lose their homes and suffer substantial loss if execution proceeded, and that the appeal would be rendered nugatory. The Respondents, through the 2nd Respondent's replying affidavit, maintained they were the bona fide owners of Ruiru/Ruiru East Block 1 (Githunguri)1362, which was fraudulently subdivided, the 1st Applicant having been criminally convicted in connection with the fraudulent acquisition. They argued that successful litigants must enjoy the fruits of their judgment, that special circumstances for a stay had not been demonstrated, and proposed a security deposit of Kshs 40,000,000/=. The court framed a single issue: whether the Applicants had met the Order 42 Rule 6(2) requirements. Holding that the Applicants would suffer substantial loss through loss of their homes and had filed the application within 16 days of judgment, and observing that it could itself direct security, the court allowed the application and directed the Applicants to deposit Kshs 3,000,000/= in court within 21 days, failing which the stay would automatically stand vacated. The judgment was delivered virtually by J. M Onyango, Judge, on 23rd September 2025.

Key legal issues

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01

Whether the Applicants met the requirements for stay of execution under Order 42 Rule 6(2)

Holding

Yes - substantial loss (loss of homes on the suit property) was demonstrated, the application was filed 16 days after judgment without unreasonable delay, and the court could direct the security itself

Reasoning

The court found the Applicants would suffer substantial loss through loss of their homes if execution proceeded pending appeal, and that the application filed 16 days after judgment was timely. Although no security had been offered by the Applicants, the court held it could direct the deposit, and fixed Kshs 3,000,000/= to be paid within 21 days, with automatic vacation of the stay on default.

p. 4

Legal principles established

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  • An applicant for stay under Order 42 Rule 6(2) must show substantial loss, that the application was made without unreasonable delay, and must furnish security as the court orders - the court may itself direct the security to be provided

Court orders

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  1. 1.The Application dated 21st August 2024 is allowed - stay of execution of the Judgment and Decree dated 5th August 2024 granted pending appeal
  2. 2.Applicants directed to deposit security of Kshs 3,000,000/= in court within 21 days, failing which the order shall stand automatically vacated

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 1C and 3A
  • Court of Appeal Rules, 2022Rule 5(2)(b)

Cases cited (3)

  • Kamaliza Security Guards v Zakem Constructions (K) Limited
    [2001] eKLR
  • Burnet v Francis Industries
  • Republic v Margaret Njeri Mutwambiri (Thika Chief Magistrate's Criminal Case No. 3319 of 2012)
Jurisdiction invoked
Order 42 Rule 6(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 1C and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamungu & another v Mutwamburi & 13 others (Environment and Land Case 58 of 2020) [2025] KEELC 6439 (KLR)", Case Analysis (2025). Not stated in the excerpt (Notice of Motion dated 21st August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6439/eng@2025-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.