Mbogo & another v Kimani (Environment and Land Appeal E019 of 2025) (Environment and Land) [2026] KEELC 175 (KLR)
The bottom line
#A Naivasha court paused the eviction of a family from their home, but only because they promised to deposit Kshs. 500,000 and file their appeal within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated substantial loss warranting a stay of execution pending appeal
The court found substantial loss established because execution might evict the Applicants from the residential property, rendering the appeal nugatory, or unjustly enrich the Respondent.
The court reviewed the draft Memorandum of Appeal and found an arguable appeal. It held that courts lean toward staying evictions from residential property to preserve the status quo until the higher court speaks. It also weighed the contested claim that the Ksh. 320,000/= deposit was a refund rather than security, holding that either eviction or unjust enrichment would constitute substantial loss.
Whether the application was filed without unreasonable delay
The court found the application was filed without undue delay, judgment having been delivered on 4th September 2025 and the application filed on 3rd October 2025.
This condition was not contested. The court simply computed the period between delivery of the judgment and filing of the application and found no undue delay.
Whether the Applicants offered adequate security for the due performance of the decree
The court held security is mandatory under Order 42 Rule 6(2)(b), noted the Applicants' pledge of readiness, and fixed Kshs. 500,000/= as security within 45 days.
The court emphasized that security is not meant to punish the judgment debtor but to guarantee due performance of the decree that may ultimately be binding. Since the Applicants pledged readiness to furnish security, the court allowed the application on terms including a cash deposit and the filing of a record of appeal within 45 days, with lapse on default.
Legal principles established
#- Substantial loss is the cornerstone for granting a stay of execution pending appeal.
- The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so the appeal is not rendered nugatory.
- An appeal does not operate as a stay; stay is granted on satisfaction of substantial loss, absence of unreasonable delay, and security for due performance of the decree.
Court orders
#- 1.Stay of execution of the judgment delivered by the trial court in Naivasha CMCC No. 157 of 2016 on 4th September 2025 together with all consequential orders granted pending hearing and determination of the intended Appeal
- 2.The Appellants/Applicants to deposit a sum of Kshs. 500,000/= in court as security for due performance of the decree within 45 days from the date of the Ruling
- 3.The Appellants/Applicants to compile, file and serve a record of appeal upon the Respondent within 45 days
- 4.In default of any of the conditions, the stay shall lapse and the Respondent shall be at liberty to execute without further reference to the court
- 5.Costs of the application to abide the outcome of the appeal
- On appeal from
- Principal Magistrates' Court, Naivasha
- Naivasha CMCC No. 157 of 2016
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbogo & another v Kimani (Environment and Land Appeal E019 of 2025) (Environment and Land) [2026] KEELC 175 (KLR)", Case Analysis (2026). Environment and Land Appeal E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/175/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.