Githinji v Hared (Environment and Land Case E222 of 2023) [2026] KEELC 30 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the stay of execution pending appeal application met the Order 42 Rule 6(2) threshold
The application failed: the delay in filing was unexplained, substantial loss was not established, and security was not addressed
Order 42 Rule 6(2) requires substantial loss, an application made without unreasonable delay, and provision of security, all conjunctively. The judgment was delivered in the presence of counsel for the defendant, so the claim of no notice was incorrect. The defendant also failed to specifically address security for due performance of the decree in his submissions, and did not demonstrate substantial loss given the court had declared him a trespasser.
Whether the plaintiff/respondent's application under Sections 152E and 152F of the Land Act and Order 22 Rules 6, 7 and 82 should be allowed
Allowed; the defendant had not refuted that he refused to vacate the suit property within the period prescribed in the judgment
Having dismissed the stay application, the court found the defendant in violation of the decree dated 24th March 2025 directing him to vacate and pay general damages of Kshs.1,000,000/-. As the defendant had not refuted his refusal to vacate, the court permitted execution of the eviction orders through licensed auctioneers with police security.
Whether the firm of Odera Were could come on record post judgment
Allowed as unopposed, meeting the requirements of Order 9 Rule 9 of the Civil Procedure Rules
Under Order 9 Rule 9, a firm may come on record post judgment with consent of the outgoing firm or leave of court. There being no opposition to the firm of Odera Were Advocates coming on record post judgment, prayer 2 was allowed as it met the legal requirements.
Legal principles established
#- The conditions for stay of execution under Order 42 Rule 6(2) - substantial loss, application without unreasonable delay, and security for due performance of the decree - are conjunctive and all must be satisfied
- A party who was represented at the delivery of judgment cannot claim that no notice of delivery was served
Court orders
#- 1.Leave granted to the firm of Odera Were Advocates to come on record for the defendant/applicant post judgment (prayer 2 of the notice of motion dated 26th June 2025)
- 2.Notice of motion dated 26th June 2025 dismissed save for prayer 2
- 3.Notice of motion dated 12th September 2025 allowed in terms of prayers 2, 3 and 5
- 4.Order directing Clear Real Auctioneers to execute the eviction orders as per the decree dated 24th March 2025
- 5.The Officer Commanding Station (OCS) Kayole Police Station to provide adequate security during the eviction exercise
- 6.Costs of both applications and the eviction exercise to be borne by the defendant/applicant
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 152E and 152F of the Land Act; Order 22 Rules 6, 7 and 82 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji v Hared (Environment and Land Case E222 of 2023) [2026] KEELC 30 (KLR)", Case Analysis (2026). Environment and Land Case (judgment and decree dated 24th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/30/eng@2026-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.