Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment· [2026] KEELC 797 (KLR)

Harry v Tumuti (Environment and Land Appeal E052 of 2025) [2026] KEELC 797 (KLR)

Environment and Land Court (appellate supervisory jurisdiction over the subordinate court)
19 February 2026
LKL Komingoi
1,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Nakuru court stopped the eviction of a man who has lived on disputed family land since 1988, but only if he deposits Kshs300,000 and files his appeal on time.

What this practically means

#

Executive summary

#
This ruling by L Komingoi J, delivered virtually at Nakuru on 19th February 2026, determined a Notice of Motion dated 22nd September 2025 in which the Appellant, Paul Kariuki Harry, sought a stay of execution of the judgment and order of Hon. Charles Ariba Kutwa SPM dated 21st August 2025 pending hearing and determination of his appeal. The application was grounded on Order 42 Rule 6 of the Civil Procedure Rules 2010 and supported by his affidavit and a further affidavit; it was opposed by the Respondent, Anne Muthoni Tumuti, in a replying affidavit sworn on 7th October 2025. By consent the motion was canvassed by written submissions. The Appellant argued that substantial loss would ensue because he would be evicted from land he had occupied since 1988, that the application was filed without delay, that he was willing to furnish security, and that the appeal was arguable. The Respondent countered that the court's discretion was governed by Order 42 Rule 6(2), that any loss was quantifiable and compensable in damages, that the trial court had found title had passed to her by survivorship, and that a successful litigant should enjoy the fruits of judgment. Adopting the test in Peter Ondade t/a Spreawett Chemist v Josephine Wangari Karanja, the court found substantial loss demonstrated, no undue delay, and willingness to give security. Stay of execution was granted on condition that the Appellant deposits Kshs300,000 as security for costs within forty-five days and files and serves the Record of Appeal within sixty days; in default the stay lapses automatically and the costs of the application abide the outcome of the appeal.

Key legal issues

#
01

Substantial loss

Holding

The Appellant, who has lived on the suit property since 1988 and would be evicted and left with no home if stay is not granted, demonstrated substantial loss

Reasoning

The Appellant deposed that he has lived on the suit property since 1988, that it is ancestral land, and that eviction would leave him with no home. The court accepted that eviction would occasion him grave and irreversible harm and that the Respondent holds the title in trust for him and other siblings, thereby satisfying the substantial-loss threshold.

p. 3
02

Unreasonable delay

Holding

The application filed on 22nd September 2025, following judgment delivered on 21st August 2025, was made without undue delay

Reasoning

The court compared the date of delivery of the trial judgment (21st August 2025) with the filing date of the Notice of Motion (22nd September 2025) and found the interval did not constitute unreasonable delay, satisfying the second condition in Order 42 Rule 6(2).

p. 3

Legal principles established

#
  • Under Order 42 Rule 6(2), no stay of execution shall be granted unless the court is satisfied that substantial loss may result to the applicant unless the order is made, that the application was made without unreasonable delay, and that security for the due performance of the decree has been given

Court orders

#
  1. 1.Stay of execution of the judgment and order of Honorable Charles Ariba Kitwa (SPM) dated 21st August 2025 granted pending the hearing and determination of the Appeal
  2. 2.The Appellant to deposit Kshs300,000 as security for cost in court within forty-five (45) days from the date of the ruling
  3. 3.The Appellant to file and serve the Record of Appeal within sixty (60) days
  4. 4.In default of the conditions, the order of stay shall lapse automatically
  5. 5.In default, the cost of the application shall abide the outcome of the appeal

Authorities

#

Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A & B, 3 & 3A
  • Civil Procedure Rules 2010Order 42 Rule 6(1)(2)(3)
  • Civil Procedure Rules 2010Order 51 Rule 1

Cases cited (5)

  • Kenya Shell Ltd -vs- Benjamin Karuga
    (1982) KLR 407
  • RWW -vs- EKW
    (2019) eKLR
  • Arun C. Sharma -vs- Ashana Raikundalia
    (2014) eKLR
  • Stanley Kang'ethe -vs- Tony Ketter
    (2013) eKLR
  • Peter Ondade t/a Spreawett Chemist -vs- Josephine Wangari Karanja
    (2006) eKLR
On appeal from
Senior Principal Magistrate's Court
Not stated in the judgment
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010, invoked in a first appeal against the judgment of Hon. Charles Ariba Kutwa SPM dated 21st August 2025

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Harry v Tumuti (Environment and Land Appeal E052 of 2025) [2026] KEELC 797 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/797/eng@2026-02-19

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