Muriu v Gathia & 2 others (Environment and Land Appeal E126 of 2024) [2025] KEELC 6695 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss
Substantial loss was satisfied because the Applicant remains in possession and further execution (transfer or sale) would render the appeal nugatory
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.
Whether the five-year delay in filing the application was excusable
The delay was excusable because the Applicant was pursuing setting-aside proceedings at the trial court until the ruling of 5th November 2024
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.
Whether the absence of proposed security defeated the application
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
The court recognized the mandatory nature of the security requirement but held the nature of the decree relevant, substituting a costs-security deposit.
Whether the appeal was arguable
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
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.
Whether the draft Memorandum of Appeal should be deemed filed
Granted under Article 159(2)(d) of the Constitution, in the interest of substantive justice
The court invoked the overriding objective to disregard technicality, given the explanations offered.
Legal principles established
#- 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
#- 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.The Memorandum of Appeal shall be filed within 10 days
- 3.The Applicant to compile, file and serve the Record of Appeal within 45 days
- 4.In default of compliance with the deposit order, the stay granted shall automatically lapse
- 5.Costs of the application to abide the outcome of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.