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ELCDismissedNot stated in the judgment· [2025] KEELC 8162 (KLR)

Otara v Mukuriah & 4 others (Environment and Land Case E031 of 2022) [2025] KEELC 8162 (KLR)

High Court of Kenya
26 November 2025
1,704 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by M. A. Odenty J at Nakuru determined the 1st Defendant/Applicant's Notice of Motion dated 11th July 2025 seeking stay of execution of a judgment ordering him to refund the purchase price of Ksh.17,440,911 (plus interest within 90 days) to the Plaintiff/Respondent, pending an appeal the applicant had preferred to the Court of Appeal. The applicant, through counsel Mr. Langat, argued that the application was filed without delay (judgment on 2nd July 2025, application on 11th July 2025), that the decretal sum was substantial, and that he apprehended difficulty recovering the money from the respondent if the appeal succeeded. The respondent, through counsel Mr. Ratemo, countered that no memorandum of appeal was exhibited, that he was entitled to enjoy the fruits of a regularly obtained money decree, and that the applicant had not proved substantial loss; he proposed that any stay be conditioned on deposit of the entire decretal sum in a joint interest-earning account. The court framed the sole issue as whether the threshold in Order 42 Rule 6(2) of the Civil Procedure Rules was met. It found no unreasonable delay, but held that substantial loss was not substantiated: the mere size of the decretal sum is insufficient, and the applicant never alleged the respondent was a man of straw with no known assets, so the evidential burden-shifting principle in National Industrial Credit Bank Ltd v Wasike was never triggered. Balancing the successful litigant's rights against the right of appeal, the court found the application devoid of merit and dismissed it with costs to the respondent on 26th November 2025.

Key legal issues

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01

Whether the application for stay of execution was filed without unreasonable delay

Holding

Yes - judgment was delivered on 2nd July 2025 and the application was filed on 11th July 2025, so there was no unreasonable delay.

Reasoning

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.

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02

Whether the applicant demonstrated substantial loss

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The 1st Defendant/Applicant's Notice of Motion dated 11th July 2025 seeking stay of execution pending appeal is dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder XLI Rule 4 (as cited in Kenya Shell Limited v Kibiru)

Cases cited (10)

  • SamCon Limited vs National Bank of Kenya Limited & 2 others
    [2023] KEHC 26502 (KLR)
  • Desbro (Kenya) Limited vs General Printers Limited: NCBA Bank Kenya PLC & another (Objectors)
    [2021] eKLR
  • Mwanza vs Mulinge
    [2024] KEHC 1847 (KLR)
  • Gulf African Bank Limited vs Signon Corporation Limited & 7 others
    [2025] KEHC 1159 (KLR)
  • Jamii Bora Bank Limited & another vs Samuel Wambugu Ndirangu
  • Shell Ltd vs Kibiru and Another
    [1986] KLR 410
  • Jessikay Enterprises Ltd vs George Kahoto Muiruri
    [2022] eKLR
  • National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & Another
    (2006) eKLR
  • John Kamau Waweru vs Joseph Muriu Waithaka
    [2017] eKLR
  • China City Construction Company Limited & another versus Karisa (Suing as the Administrator and Legal Representative of the Estate of the Late Didlora Mwaka Mwangala)
    (Civil Appeal 105 of 2023) [2024] KEHC 3323 (KLR) (8 April 2024) (Ruling)
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, "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.