Otube v Wanjira & 2 others (Sued as Representatives and Officials of Pave Counselling & Development Group) & 3 others (Environment and Land Appeal E74 of 2025) [2026] KEELC 393 (KLR)
The bottom line
#The High Court in Nakuru halted execution of a money/land judgment pending appeal, but only on condition the appellant deposits Kshs. 200,000 as security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6 were satisfied
A conditional stay was granted: the application was filed expeditiously, substantial loss was alleged through threatened eviction, and security would be by a monetary deposit
The court applied Order 42 Rule 6, noting the judgment was delivered on 23rd October 2025 and the application filed on 11th November 2025, showing expeditious filing. The Applicant's apprehension of eviction amounted to substantial loss, balanced against the Respondent's right to the fruits of the judgment. The court exercised its discretion to grant stay conditional on a deposit of Kshs. 200,000 in a joint interest-earning account within 30 days.
The form and adequacy of security for due performance of the decree
Security is a matter of judicial discretion; the court ordered a monetary deposit rather than the title deed deposit or inhibition proposed by the Respondent
Relying on Nduhiu Gitahi v Warugongo, the court noted security may take many forms so long as it is adequate and least disadvantageous to the party giving it. The purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor (Arun C Sharma). The court settled on a Kshs. 200,000 deposit in a joint interest-earning account as proportionate security.
Legal principles established
#- Stay of execution pending appeal is discretionary but must be exercised judiciously, and requires demonstration of substantial loss, absence of unreasonable delay, and security for due performance of the decree
- The cornerstone of a stay application is demonstration of substantial loss
- Security under Order 42 is discretionary as to form and must be adequate while being least disadvantageous to the party giving it
Court orders
#- 1.Conditional stay of execution of the judgment and decree in CMELC/219/2018 delivered on 23rd October 2025 pending the hearing and determination of the appeal
- 2.Applicant to deposit Kshs. 200,000 in a joint interest-earning account of the advocates on record within 30 days, failing which the stay lapses
- On appeal from
- Chief Magistrate's Court at Nakuru
- CMELC/219/2018
- Jurisdiction invoked
- Appellate jurisdiction over the Chief Magistrate's Court; Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otube v Wanjira & 2 others (Sued as Representatives and Officials of Pave Counselling & Development Group) & 3 others (Environment and Land Appeal E74 of 2025) [2026] KEELC 393 (KLR)", Case Analysis (2026). CMELC/219/2018 (Appeal); Notice of Motion dated 2nd November 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/393/eng@2026-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.