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ELCPartially AllowedNot stated in the judgment (Appeal from Ruiru Elc Case No. E018 of 2024)

Ngugi v Kienje & another (Environment and Land Appeal E120 of 2024) [2025] KEELC 8570 (KLR)

Environment and Land Court
8 December 2025
2,337 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused execution of a land decree, but only after ordering the appellant to deposit Kshs. 700,000 as security within 45 days.

What this practically means

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Executive summary

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This is a Ruling by Mogeni J of the Environment and Land Court at Thika, delivered virtually on 8th December 2025, on a Notice of Motion dated 13th March 2025 by the Appellant, Alice Njeri Ngugi, in an appeal against a Ruling delivered by Hon. Joseph Were at Ruiru Law Courts in Ruiru Elc Case No. E018 of 2024 (Cosmas Rugio Kienje & Anor v Alice Njeri Ngugi). The application, grounded on Article 159(2)(c) and (d) of the Constitution and various provisions of the Civil Procedure Act and Rules, sought a stay of proceedings and of execution of the lower court Ruling pending the appeal, referral to arbitration under a sale agreement of 21st January 2023, expeditious disposal of the appeal, reinstatement of the appeal in the e-filing portal, and costs. The 1st Respondent opposed, terming the application an abuse of process, asserting the Appellant's prior stay application was dismissed for want of prosecution and no plausible appeal had been established. The Court identified one issue: whether stay of execution pending appeal was merited. Applying Order 42 Rule 6(2) and the overriding objective, and citing Consolidated Marine v Nampijja, the Court found substantial loss demonstrated, no undue delay, and exercised its discretion to fix security at Kshs. 700,000.00. The application was allowed in terms of Prayers (2), (3), (4) and (7); the Appellant was given 45 days to deposit the security and compile a complete Record of Appeal, failing which the stay lapses. Costs were to abide the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the orders for stay of execution pending appeal are merited

Key legal issues

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01

Whether the orders for stay of execution pending appeal are merited

Holding

Yes. The Applicant demonstrated substantial loss, brought the application without undue delay, and was willing to furnish security, which the Court fixed at Kshs. 700,000.00.

Reasoning

The Court applied the three conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. It found warrants of attachment were being pursued and the Applicant feared non-redemption of the decretal sum. The application followed a prior stay application filed promptly after the Ruling. On security, the Court held it has discretion to fix the amount and ordered Kshs. 700,000.00 deposited in court within 45 days, failing which the stay lapses.

p. 5
02

Whether the security for the decree may be fixed by the Court notwithstanding the parties' rival positions

Holding

Yes. The Court has discretion to order security in any case where it thinks fit, and fixed it at Kshs. 700,000.00 despite the Applicant offering half and the Respondent demanding the full decretal sum.

Reasoning

The Applicant offered to deposit half the decretal sum; the 1st Respondent demanded deposit of the entire sum in a joint interest-earning account. The Court held that despite the Respondent's contention, it retains a discretion on security, and exercised it by fixing Kshs. 700,000.00 in Court, coupled with a timeline for compiling the Record of Appeal.

p. 5

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so that the appeal, if successful, is not rendered nugatory.
  • In exercising discretion, courts must apply the overriding objective and opt for the lower rather than the higher risk of injustice.

Court orders

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  1. 1.The Application dated 13/3/2025 is allowed in terms of Prayers (2), (3), (4) and (7).
  2. 2.The Applicant shall deposit Kshs. 700,000.00 in Court as security for the due performance of the Decree within forty-five (45) days from the date of this Ruling.
  3. 3.Failure to comply with the security order, the stay orders shall automatically lapse.
  4. 4.The Appellant/Applicant shall within 45 days from the date of this Ruling compile, file and serve upon the Respondents a complete Record of Appeal.
  5. 5.Costs shall abide the cause.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Ruiru Law Courts (Ruiru Elc Case No. E018 of 2024)
E018 of 2024
Jurisdiction invoked
Article 159(2)(c) & (d) of the Constitution; Sections 1A, 1B, 3A, 59, 79G & 95 of the Civil Procedure Act; Order 42 Rule 6, Order 46 Rules 1, 20(1) & (2), Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010

Relief refused

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Prayer 5 - referral of the matter to arbitration as agreed in the Sale Agreement dated 21st January 2023

Not granted; the Court allowed the application only in terms of Prayers (2), (3), (4) and (7).

p. 5

Prayer 6 - expeditious disposal of the appeal with timelines (in the alternative to prayer 5)

Not granted; the Court instead directed filing of a complete Record of Appeal within 45 days.

p. 5

Costs

Costs shall abide the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The purpose of the application for stay of execution pending Appeal is to preserve the subject matter in dispute so that the right of the Appellant who is exercising his undoubted right of Appeal are safeguarded and the Appeal if successful is not rendered nugatory.
p. 4purpose of stay of execution pending appeal
The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice.
p. 5judicial discretion and the overriding objective
The Application dated 13/3/2025 is allowed in terms of Prayers (2), (3), (4) and (7).
p. 5final orders
The Applicant shall deposit Kshs. 700,000.00 (Kenya Shillings Seven Hundred Thousand Only) in Court as security for the due performance of the Decree within forty-five (45) days from the date of this Ruling.
p. 5security for due performance of decree
Costs shall abide the cause.
p. 5costs

Issues in the judgment

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minor

The judgment gives two different dates for delivery of the impugned Ruling by Hon. Joseph Were.

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, "Ngugi v Kienje & another (Environment and Land Appeal E120 of 2024) [2025] KEELC 8570 (KLR)", Case Analysis (2025). Not stated in the judgment (Appeal from Ruiru Elc Case No. E018 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8570/eng@2025-12-08

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