Otara v Mukuriah & 4 others (Environment and Land Case E031 of 2022) [2025] KEELC 8162 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay of execution was filed without unreasonable delay
Yes - judgment was delivered on 2nd July 2025 and the application was filed on 11th July 2025, so there was no unreasonable delay.
The court compared the date of judgment (2nd July 2025) with the date of filing the application (11th July 2025), a gap of about nine days, and found the application was brought timeously, satisfying the first limb of Order 42 Rule 6(2)(a) on delay.
Whether the applicant demonstrated substantial loss
No. The applicant did not substantiate any substantial loss, did not show the respondent was a man of straw, and did not raise the issue of the respondent's lack of known assets, so the evidential burden never shifted to the respondent.
Applying Order 42 Rule 6(2), the court held that merely citing the size of the decretal sum (Ksh.17 million) is insufficient; the applicant must show the specific difficulty of recovery. Since the applicant never alleged the respondent lacked assets, the burden-shifting principle in National Industrial Credit Bank Ltd v Wasike was not triggered, and the successful litigant's right to the fruits of judgment prevailed.
Legal principles established
#- Courts rarely, but not never, grant stay of execution of money decrees; the applicant must demonstrate extreme difficulty in recovering the decretal sum if the appeal succeeds to establish substantial loss
- Where an applicant expresses a reasonable fear that the respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show his resources
- It is not sufficient merely to state that the decretal sum is large; the applicant must demonstrate the specific loss he would suffer if stay is not granted
Court orders
#- 1.The 1st Defendant/Applicant's Notice of Motion dated 11th July 2025 seeking stay of execution pending appeal is dismissed
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otara v Mukuriah & 4 others (Environment and Land Case E031 of 2022) [2025] KEELC 8162 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8162/eng@2025-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.