Muchene v Karungu & 5 others (Civil Appeal E042 of 2025) [2025] KEELC 6546 (KLR)
The bottom line
#The Kajiado Environment and Land Court dismissed a landowner's request to pause judgment enforcement because he offered no real proof he would suffer serious harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the requirements for stay of execution pending appeal under Order 42 Rule 6(2)
The application failed: although filed timeously (six days after judgment), the Applicant did not demonstrate substantial loss by evidence, and the Notice of Appeal did not properly anchor the application
The court set out the three conditions in Order 42 Rule 6(2). It found the application was brought without undue delay, being filed six days after the judgment. However, the Applicant merely averred irreparable loss without demonstrating its nature or how execution would prejudice him. The court relied on authority that substantial loss must be evidenced and that execution is a lawful process which does not by itself amount to substantial loss. The application was therefore dismissed with costs.
Whether a Notice of Appeal properly anchors an application for stay in this court
It does not; appeals to the High Court/ELC lie by memorandum of appeal under Order 42 rule 1, and there is no provision for a Notice of Appeal as in appeals to the Court of Appeal
The Applicant relied on a Notice of Appeal dated 26th May 2025. The court held that unlike appeals to the Court of Appeal, there is no legal provision for filing a Notice of Appeal by a party intending to appeal to this court. Order 42 rule 1 requires appeals to the High Court to be by memorandum of appeal signed as a pleading and setting out numbered grounds without argument or narrative. The absence of a memorandum undermined the application's foundation.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate substantial loss by evidence, not mere averments
- A Notice of Appeal does not properly anchor an application for stay in the High Court/ELC; appeals to that court lie by memorandum of appeal under Order 42 rule 1
- The three conditions for stay of execution pending appeal are substantial loss, absence of unreasonable delay, and provision of security under Order 42 Rule 6(2)
Court orders
#- 1.The Notice of Motion dated 26th May 2025 is dismissed
- 2.Costs of the application awarded to the 1st and 2nd Respondents
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchene v Karungu & 5 others (Civil Appeal E042 of 2025) [2025] KEELC 6546 (KLR)", Case Analysis (2025). Notice of Motion dated 26th May 2025 (arising from Kajiado ELC Case No. 61 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6546/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.