Maboko Distributors Ltd & 2 others v Njahira (Environment and Land Appeal E073 of 2025) [2026] KEELC 993 (KLR)
The bottom line
#The High Court stopped enforcement of a land judgment because eviction can't be undone by a refund, but only after Kshs 1 million security was deposited.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Appellants demonstrated substantial loss because the decree dispossessed them of land; eviction and alteration of title are not remediable by damages alone.
The court distinguished refundability of a monetary award from proprietary consequences. The decree included eviction, cancellation of ownership documents and permanent injunctive relief. In land matters, eviction and alteration of title carry consequences not easily reversible and not adequately remedied by damages, so the Appellants proved they would suffer substantial loss if stay was not granted.
Unreasonable delay
Filing on 14th April 2025 following judgment of 18th March 2025 was without unreasonable delay.
The court compared the judgment delivery date with the filing date and found the roughly one-month interval did not constitute unreasonable delay under Order 42 Rule 6(2)(a).
Security for due performance of the decree
Willingness to furnish security sufficed; the court conditioned the stay on a deposit of Kshs 1,000,000/= within thirty days, failing which the stay lapses.
Order 42 Rule 6(2)(b) is mandatory, but security exists to guarantee due performance of the decree, not to punish the judgment debtor. The Applicants expressed willingness to provide security, and the court imposed a conditional deposit covering the decretal sum, with automatic lapse on default.
Stay of costs against the 3rd Appellant
A stay of execution of costs is within the court's discretion notwithstanding that costs are enforceable as a monetary decree.
The Respondent argued, citing Francis Kabaa v Nancy Wambui, that stay of costs could not issue. The court held that while costs are ordinarily enforceable as a monetary decree, Order 42 Rule 6 permits a stay of the decree in whole or in part upon just terms.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution and must be proved, not merely alleged
- Where a decree goes beyond a pecuniary award and includes eviction, cancellation of title documents and permanent injunction, the ability to refund the decretal sum does not cure the risk of substantial loss
- The court retains discretion under Order 42 Rule 6 to stay execution of a decree, including costs, in whole or in part upon just terms
Court orders
#- 1.A stay of execution of the Judgment delivered on 18th March 2025 is granted pending the hearing and determination of the Appeal
- 2.The Appellants shall deposit with the court the sum of Kshs 1,000,000/= as security for the due performance of the decree within thirty days of the date of the ruling, and in default the stay shall lapse automatically
- 3.Costs of the application shall abide by the outcome of the appeal
- On appeal from
- Milimani Commercial Courts (trial magistrate)
- COMSU No. E1031 of 2023
- Jurisdiction invoked
- Sections 1A, 3A, 3B and 65 of the Civil Procedure Act and Orders 42 and 43 of the Civil Procedure Rules (stay of execution pending appeal under Order 42 Rule 6)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maboko Distributors Ltd & 2 others v Njahira (Environment and Land Appeal E073 of 2025) [2026] KEELC 993 (KLR)", Case Analysis (2026). Not stated on the face of the judgment (arising from Milimani Commercial COMSU No. E1031 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/993/eng@2026-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.