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ELCPartially AllowedNotice of Motion dated 5th November 2024 (Appeal from CMCC Thika No. 640 of 2013)· [2025] KEELC 6695 (KLR)

Muriu v Gathia & 2 others (Environment and Land Appeal E126 of 2024) [2025] KEELC 6695 (KLR)

High Court of Kenya (Environment and Land jurisdiction), sitting at Thika
6 October 2025
3,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The High Court in Thika stopped execution of a land judgment pending appeal, but only if the appellant deposits Kshs. 100,000 within 30 days.

What this practically means

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Executive summary

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The Applicant, Doris Wanjiru Muriu, moved the High Court at Thika by Notice of Motion dated 5th November 2024 seeking a stay of execution of the decree in CMCC Thika No. 640 of 2013 pending appeal, and that her draft Memorandum of Appeal be deemed filed. The underlying suit concerned land parcel Ngenda/Nyamagara/772, in which the 1st Respondent obtained an ex parte judgment in 2018 declaring him absolute owner. The Applicant argued that the same dispute had been conclusively determined in Nairobi High Court Civil Case No. 1658 of 1979, rendering the trial suit res judicata, and that she was condemned unheard when the trial court reinstated its judgment after her response was filed late, despite her payment of thrown-away costs. The 1st Respondent opposed, contending that the decree was executed in 2020 and title issued to him, that the application was filed over five years after judgment with inordinate delay, that no security was offered, and that the Applicant was in contempt of eviction orders. The court framed four issues: the Order 42 Rule 6 threshold, arguability of the appeal, admission of the draft memorandum, and costs. It found substantial loss satisfied since the Applicant remained in possession and further execution would render the appeal nugatory; held the delay excusable because she had been diligently pursuing remedies in the trial court until the ruling of 5th November 2024; and found the res judicata plea, which would divest the trial court of jurisdiction, rendered the appeal arguable. Allowing the application, the court granted a conditional stay of further execution upon deposit of Kshs. 100,000 within 30 days, directed filing of the memorandum within 10 days and the record of appeal within 45 days, with the stay lapsing on default and costs of the application to abide the appeal. Judgment delivered virtually at Thika on 6th October 2025 by J. M. Onyango, J.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss

Holding

Substantial loss was satisfied because the Applicant remains in possession and further execution (transfer or sale) would render the appeal nugatory

Reasoning

Judgment was delivered in 2018 and title issued to the Respondent, but the Applicant remains in possession, showing the dispute over possession and ownership is alive. If execution proceeded by transfer, sale or disposal, the appeal would be nugatory, satisfying the substantial loss test under Order 42 Rule 6.

p. 6
02

Whether the five-year delay in filing the application was excusable

Holding

The delay was excusable because the Applicant was pursuing setting-aside proceedings at the trial court until the ruling of 5th November 2024

Reasoning

The impugned judgment of 2018 had been the subject of the Applicant's setting-aside attempts from 2023; she paid thrown-away costs and the ruling of 5th November 2024 reinstating the decree is the decision now under appeal. Delay is measured against that ruling, not the original judgment.

p. 6
03

Whether the absence of proposed security defeated the application

Holding

Although Order 42 Rule 6(2)(b) is mandatory, the nature of the decree (immovable property) made monetary security for performance unsuitable; a deposit of Kshs. 100,000 as security for costs of the appeal was imposed instead

Reasoning

The court recognized the mandatory nature of the security requirement but held the nature of the decree relevant, substituting a costs-security deposit.

p. 6
04

Whether the appeal was arguable

Holding

The res judicata plea under Section 7 of the Civil Procedure Act and claims of violation of the right to be heard rendered the appeal arguable and not frivolous

Reasoning

The Applicant invoked an earlier Nairobi High Court decree over the same land between the same parties, raising bona fide questions of law and fact, including whether the trial court had jurisdiction.

p. 6
05

Whether the draft Memorandum of Appeal should be deemed filed

Holding

Granted under Article 159(2)(d) of the Constitution, in the interest of substantive justice

Reasoning

The court invoked the overriding objective to disregard technicality, given the explanations offered.

p. 7

Legal principles established

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  • The prerequisites for a stay of execution pending appeal are substantial loss, application without unreasonable delay, and willingness to provide security (Order 42 Rule 6(2), as reflected in Butt v Rent Restriction Tribunal)
  • Where an applicant has been diligently pursuing remedies in the trial court, delay in filing the stay application is excusable
  • An appeal raising a credible plea of res judicata, which would divest the trial court of jurisdiction, is arguable

Court orders

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  1. 1.Stay of further execution of the judgment and decree in CMCC Thika No. 640 of 2013 pending hearing and determination of the appeal, on condition that the Applicant deposits Kshs. 100,000/= in court within 30 days
  2. 2.The Memorandum of Appeal shall be filed within 10 days
  3. 3.The Applicant to compile, file and serve the Record of Appeal within 45 days
  4. 4.In default of compliance with the deposit order, the stay granted shall automatically lapse
  5. 5.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure RulesOrder 42 Rule 6 (and 6(2))
  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 9 Rule 9
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (12)

  • Civil Appeal No. 9 of 2021 eKLR
    eKLR
  • Constitutional Petition No. 301 of 2019 eKLR
    eKLR
  • James Mangoli Musoo v Ezeetec Limited [2014] eKLR
    [2014] eKLR
  • Judicial Review No. E178 of 2023 eKLR
    eKLR
  • Giella v Cassman Brown & Co. Ltd [1973] E.A
    [1973] E.A
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR
    [2014] eKLR
  • Burnet v Francis Industries as cited in Kamaliza Security Guards v Zakem Constructions (K) Ltd [2001] eKLR
    [2001] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR
    [2012] eKLR
  • Century Oil Trading Company Ltd v Kenya Shell Ltd [2007] eKLR
    [2007] eKLR
  • DGM v. EWG [2021] eKLR
    [2021] eKLR
  • Party of Independent Candidate of Kenya & Another v Mutula Kilonzo & 2 Others [2013] eKLR
    [2013] eKLR
  • Butt v Rent Restriction Tribunal [1982] KLR 417
    [1982] KLR 417
On appeal from
Chief Magistrate's Court, Thika
CMCC Thika No. 640 of 2013
Jurisdiction invoked
Appellate/revisional jurisdiction over appeal from the trial court, with stay sought under Order 42 Rule 6 of the Civil Procedure Rules

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, "Muriu v Gathia & 2 others (Environment and Land Appeal E126 of 2024) [2025] KEELC 6695 (KLR)", Case Analysis (2025). Notice of Motion dated 5th November 2024 (Appeal from CMCC Thika No. 640 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6695/eng@2025-10-06

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