Ndungu v Mungai (Environment and Land Appeal E044 of 2024) [2025] KEELC 6805 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the stay application was filed without unreasonable delay
The application filed 71 days after judgment, only after the 60-day compliance period had lapsed, attracted the court's concern on delay.
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.
Whether the applicant demonstrated substantial loss
Fear of eviction alone does not establish substantial loss; the applicant failed to show irreparable harm negating the core of the appeal.
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.
Whether the applicant offered security for due performance of the decree
The applicant only offered general willingness to comply with conditions rather than proposing specific security, which the court treats as good practice for applicants.
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.
Legal principles established
#- 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
#- 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.Stay of execution of the judgment and decree in Nakuru MCELC No. E126 of 2023 pending appeal, conditional on the deposit
- 3.Applicant to fast-track the processing of the record of appeal within 45 days
- 4.Costs to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.