Kimotho v Mushomba (Environment and Land Case E004 of 2023) [2025] KEELC 8371 (KLR)
The bottom line
#A Kenyan court refused to pause a Sh300,000 land refund judgment because the estate's administrator could not show the payment would cause her real, irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss in a money decree
A decree for refund of Kshs. 300,000 purchase price is not substantial loss
The court found the decree amount incapable of being characterised as substantial loss for purposes of Order 42 rule 6(2). The Defendant's claim that neither she nor her father received the purchase price was rejected because evidence showed her mother received it on behalf of the estate she represents.
Responsibility of a legal representative of an estate
The Defendant, as administratrix, must satisfy the decree as she enjoys the assets of the estate
Having been sued as administratrix of her late father's estate, the Defendant cannot disclaim liability on the ground that the purchase price never reached her or her father personally. Her parents are deceased and cannot be sued; responsibility for the decree attaches to her in the same measure as her entitlement to the estate's assets.
Cumulative conditions for stay
All three Order 42 rule 6(2) conditions must coexist; two out of three do not suffice
The court accepted that the application was filed timeously and that the Defendant was willing to furnish security, but held that since substantial loss was not proved, the cumulative requirement was not met and the motion necessarily failed.
Legal principles established
#- All three conditions in Order 42 rule 6(2) - substantial loss, timely filing and security - must be proved before stay is granted
- An administrator representing an estate bears the responsibility of satisfying a decree against the estate just as they enjoy its assets
Court orders
#- 1.Dismissal of the Defendant's notice of motion dated 21-2-2025
- 2.Costs of the motion to the Plaintiff
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya; Sections 1A, 1B, 3A and 22 of the Civil Procedure Act; Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimotho v Mushomba (Environment and Land Case E004 of 2023) [2025] KEELC 8371 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8371/eng@2025-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.