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ELCAllowedAppeal from MCELC/E068 of 2021 (Chief Magistrate's Court at Molo)· [2025] KEELC 7696 (KLR)

Bett & another v Githu (Environment and Land Appeal E071 of 2024) [2025] KEELC 7696 (KLR)

Environment and Land Court
6 November 2025
MOM. A. ODENY
1,472 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 eviction proceedings until an appeal is heard, but only after the appellants deposited Kshs. 200,000 as security.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 6th January 2025 by the Appellants/Applicants, led by Samuel Cheruiyot Bett, seeking a stay of execution of the judgment of the Chief Magistrate's Court at Molo in MCELC/E068 of 2021 delivered on 17th December 2024, and maintenance of status quo pending appeal. The applicants deponed that they and their families had resided on the suit property for over twelve years, that the decree holder was moving to evict them, and that execution would render their appeal nugatory; they offered security. Counsel for the applicants relied on Order 42 Rule 6 of the Civil Procedure Rules and several Court of Appeal authorities on stay, delay, substantial loss and security. Respondent's counsel opposed, arguing delay in presenting the application, failure to establish substantial loss absent proof of title, and that no security would compensate for loss of use of the land. The court framed a single issue: whether to stay execution. It found no inordinate delay (judgment 17 December 2024, motion filed 6 January 2025), accepted the applicant's offer of security as good faith, and noted that mere imminent eviction is not of itself proof of substantial loss but weighed the preservation of the appeal against the respondent's judgment. It granted a conditional stay: the applicants to deposit Kshs. 200,000 in a joint interest-earning account of the advocates within 30 days, failing which the stay lapses, and directed the appellants to fast-track the appeal.

Key legal issues

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01

Whether the applicants established the conditions for a stay of execution under Order 42 Rule 6(2)

Holding

A conditional stay was granted: no inordinate delay was shown (judgment 17 December 2024, application filed 6 January 2025), substantial loss was claimed through threatened eviction, and the applicants offered security by way of a deposit of Kshs. 200,000 within 30 days, failing which the stay lapses.

Reasoning

The court restated the Order 42 Rule 6(2) conditions: substantial loss, no unreasonable delay, and security. It found the application filed within a fortnight of judgment, hence no inordinate delay. It accepted the applicants' offer of security as good faith and exercised its discretion in favour of a conditional stay to preserve the appeal while protecting the decree holder through the deposit.

p. 4

Legal principles established

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  • An order of stay of execution is discretionary but must be exercised judiciously, balancing the appellant's right of appeal against the decree holder's right to the fruits of judgment.
  • A mere mention of imminent eviction is not proof of substantial loss; an applicant for stay must establish substantial loss.

Court orders

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  1. 1.Conditional stay of execution of the judgment of the Chief Magistrate's Court at Molo in MCELC/E068 of 2021 pending appeal
  2. 2.Applicants to deposit Kshs. 200,000 in a joint interest-earning account of the Advocates on record within 30 days, failure to which the stay lapses
  3. 3.Appellants to fast track the hearing of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (11)

  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
  • Loice Khachendi Onyango vs Alex Inyangu & another
    [2017] eKLR
  • Kenya Shell Ltd vs Kibiru & Another
    [1986] KLR 410
  • Macharia t/a Macharia & Co Advocates vs East African Standard
    [2002] KLR 63
  • Jaber Mohsen Ali & another vs Priscillah Boit & another
    [2014] eKLR
  • M/s Portreitz Maternity vs James Karanga Kabia
    Civil Appeal No 63 of 1997
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 others
    Civil Appeal No 291 of 1997
  • Turbo Transporters vs Absalom Dova
    [2014] eKLR
  • Karungu v Masira & another
    (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR)
  • RWW v EKW
    (2019) eKLR
  • Exclusive Mines Limited & another vs Ministry of Mining & 2 others
    [2015] eKLR
On appeal from
Chief Magistrate's Court at Molo
MCELC/E068 of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (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, "Bett & another v Githu (Environment and Land Appeal E071 of 2024) [2025] KEELC 7696 (KLR)", Case Analysis (2025). Appeal from MCELC/E068 of 2021 (Chief Magistrate's Court at Molo). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7696/eng@2025-11-06

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