Ikigu v Muchina (Sued on Behalf of Gitau Muchina) & another (Environment and Land Appeal E045 of 2025) [2025] KEELC 8090 (KLR)
The bottom line
#A Kenyan landowner who lost in absentia won a temporary halt to eviction, but only after promising to deposit Kshs 300,000 and move her appeal fast.
What this practically means
#Executive summary
#Key legal issues
#Competency of an affidavit sworn outside Kenya without a certificate under Section 106(B) of the Evidence Act
The affidavit was competent; notarisation and the jurat indicating it was sworn in England cured the defect, and the certificate was subsequently filed and placed on record
The court noted that the affidavit was notarized as required by law, that counsel had filed a certificate addressing the issues raised, and that the jurat indicated the affidavit was sworn in England before a Notary Public. Relying on Order 19 Rule 7 of the Civil Procedure Rules, the court held these features cured the anomaly and the affidavit was competent.
Whether the stay application was filed without unreasonable delay
There was no inordinate delay; time ran from the ruling of 8th July 2025 declining to set aside the ex-parte judgment, not from the judgment of 13th April 2022
The court held that delay is measured from the ruling that gave rise to the application. The ruling was delivered on 8th July 2025 and the application filed on 16th July 2025, hence no inordinate delay. The Respondent had wrongly pegged delay on the 2022 judgment, whereas the applicant had actively sought to set aside that judgment and its application was dismissed on 8th July 2025.
Whether the Applicant established substantial loss warranting stay of execution
A conditional stay was granted in the interest of justice; execution would result in eviction and irreversible dispossession, rendering the appeal nugatory
The court accepted that the Applicant, a registered owner in continuous occupation, faced eviction and irreversible dispossession of proprietary rights. It stressed that stay is discretionary and must be exercised judiciously to balance the appellant's right to a meaningful appeal against the decree holder's rights, and granted a conditional stay with security.
Legal principles established
#- An applicant for stay of execution under Order 42 Rule 6 must establish substantial loss, file the application without unreasonable delay, and provide security for due performance of the decree
- Whether delay in filing a stay application is unreasonable depends on the surrounding circumstances of each case
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution
Court orders
#- 1.An order of stay of execution is hereby issued pending the hearing and determination of this Appeal
- 2.The Appellant to deposit Kshs 300,000/ in a joint interest earning account of the Advocates on record within 30 days failure to which the stay lapses
- 3.Appellant to file and serve the Record of Appeal within 60 days
- 4.Costs to abide by the outcome of the Appeal
- On appeal from
- Magistrates' Court (CMELC No 157 of 2019)
- CMELC No 157 of 2019
- 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, "Ikigu v Muchina (Sued on Behalf of Gitau Muchina) & another (Environment and Land Appeal E045 of 2025) [2025] KEELC 8090 (KLR)", Case Analysis (2025). CMELC No 157 of 2019 (appeal thereof; ex-parte judgment of 13th April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8090/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.