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ELCPartially AllowedNakuru MCELC No. E126 of 2023 (Appeal)· [2025] KEELC 6805 (KLR)

Ndungu v Mungai (Environment and Land Appeal E044 of 2024) [2025] KEELC 6805 (KLR)

Environment and Land Court of Kenya
8 October 2025
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court paused an eviction only after the landowner agreed to deposit Kshs 200,000, warning that delaying a stay application can sink it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (M. A. Odeny, J) determines the Appellant's Notice of Motion dated 18 October 2024 seeking stay of execution of the judgment and decree in Nakuru MCELC No. E126 of 2023, delivered on 8 August 2024, in which the trial court dismissed the Appellant's counterclaim and ordered him to demolish structures on the suit property and vacate within sixty days. The Applicant argued he would suffer irreparable harm of destitution as he resides on the property with his family, that the application was brought without undue delay, and that he was willing to abide by reasonable conditions. The Respondent countered that a similar stay application had been dismissed by the lower court, that no substantial loss or security had been demonstrated, and that he had been deprived of his property for nearly two decades. The court framed a single issue: whether the applicant met the Order 42 Rule 6 threshold. It found the application was filed seventy-one days after judgment, only after the sixty-day compliance period had lapsed, raising a question of unreasonable delay. On substantial loss, the court applied its own earlier holding and James Wangalwa, that imminent eviction or execution is not of itself proof of substantial loss. On security, it noted the applicant offered only general willingness rather than a concrete proposal. Nevertheless, in the interest of justice, the court granted a conditional stay: deposit of Kshs 200,000 in a joint interest-earning account of the advocates within 30 days, failing which the stay lapses, and fast-tracking of the record of appeal within 45 days. Costs were awarded to the Respondent.

Key legal issues

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01

Whether the stay application was filed without unreasonable delay

Holding

The application filed 71 days after judgment, only after the 60-day compliance period had lapsed, attracted the court's concern on delay.

Reasoning

The judgment was delivered on 8 August 2024 and the application filed on 18 October 2024, seventy-one days later. The court questioned why the applicant waited until the sixty days granted by the trial court to vacate had lapsed before seeking stay, applying the principle that even one day's delay can be unreasonable depending on circumstances.

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

Fear of eviction alone does not establish substantial loss; the applicant failed to show irreparable harm negating the core of the appeal.

Reasoning

Relying on the court's earlier holding in Karungu v Masira and James Wangalwa v Agnes Naliaka Cheseto, the court reasoned that execution is a lawful process and that the imminence of eviction after a full hearing is not, by itself, proof of substantial loss; the applicant must show the execution would irreparably affect the essential core of his appeal.

p. 3
03

Whether the applicant offered security for due performance of the decree

Holding

The applicant only offered general willingness to comply with conditions rather than proposing specific security, which the court treats as good practice for applicants.

Reasoning

The court adopted the reasoning in Exclusive Mines Limited that an applicant seeking stay should, in good faith, offer or propose security. Although the applicant expressed willingness to abide by reasonable conditions, the court exercised its discretion to fix the security itself rather than refuse the application outright.

p. 4

Legal principles established

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  • What constitutes unreasonable delay in filing a stay application depends on the circumstances of each case; even one day after judgment may be unreasonable.
  • The mere fact that execution or eviction is imminent does not by itself amount to substantial loss under Order 42 Rule 6.

Court orders

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  1. 1.Applicant to deposit Kshs 200,000 in a joint interest-earning account of the Advocates on record within 30 days, failing which the stay order lapses
  2. 2.Stay of execution of the judgment and decree in Nakuru MCELC No. E126 of 2023 pending appeal, conditional on the deposit
  3. 3.Applicant to fast-track the processing of the record of appeal within 45 days
  4. 4.Costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)(b)

Cases cited (15)

  • Runda Water Limited & another vs Timothy John Nicklin & another
    [2017] eKLR
  • RWW vs EKW
    [2019] eKLR
  • James Wangalwa & another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Absalom Dova vs Tarbo Transporters
    [2013] eKLR
  • Mwaura Karuga t/a Limit Enterprises vs Kenya Bus Services Ltd & 4 others
    [2015] eKLR
  • Gianfranco Manenthi & Another vs Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • Focin Motorcycle Co Limited vs Ann Wambui Wangui & Another
    [2018] eKLR
  • Nduhiu Gitai & Another vs Anna Wambui Warugongo
    [1988] 2KAR
  • Kenya Shell Limited vs Benjamin Karuga Kibiru & another
    [1986] KECA 94 (KLR)
  • Agip (Kenya) Limited vs Highlands Tyres Ltd
    [2001] eKLR
  • Ivita vs Kyumbu
    [1975] eKLR
  • Antoine Ndiaye vs African Virtual University
    [2015] KEHC 6783 (KLR)
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014]
  • Karungu v Masira & another
    (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR) (25 July 2024)
  • Exclusive Mines Limited & another vs Ministry of Mining & 2 others
    [2015] eKLR
On appeal from
Magistrates' Court (Nakuru)
Nakuru MCELC No. E126 of 2023
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Ndungu v Mungai (Environment and Land Appeal E044 of 2024) [2025] KEELC 6805 (KLR)", Case Analysis (2025). Nakuru MCELC No. E126 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6805/eng@2025-10-08

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