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ELCAllowedNot stated on the face of the judgment (arising from Milimani Commercial COMSU No. E1031 of 2023)· [2026] KEELC 993 (KLR)

Maboko Distributors Ltd & 2 others v Njahira (Environment and Land Appeal E073 of 2025) [2026] KEELC 993 (KLR)

High Court of Kenya
20 February 2026
2,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling by Hon. T. Murigi J on a Notice of Motion dated 14th April 2025 in which the Appellants sought a stay of execution of the judgment and decree of the trial court (Milimani Commercial COMSU No. E1031 of 2023, delivered 18th March 2025) pending appeal. The application was anchored on Sections 1A, 3A, 3B and 65 of the Civil Procedure Act and Orders 42 and 43 of the Civil Procedure Rules. The Appellants argued they would suffer substantial loss if evicted from Plots V2594 and V2595, that land is unique and irreplaceable, that the application was filed promptly, and that they were willing to furnish security. The Respondent opposed, contending the Order 42 Rule 6(2) conditions are conjunctive and unmet: no substantial loss shown given his financial capacity to refund the decretal sum, delay, and no security offered; he also relied on authority that stay of costs cannot issue against the 3rd Appellant. Framing the sole issue as whether the Order 42 Rule 6 conditions were satisfied, the court found that the decree was not confined to a pecuniary award but included eviction, cancellation of ownership documents and permanent injunctive relief, whose proprietary consequences are not remediable by refund of damages; substantial loss was therefore established. The application was filed without unreasonable delay, and the mandatory security condition was met by the Appellants' willingness to provide security. The court allowed the application, granting a stay of execution of the 18th March 2025 judgment pending appeal on condition that the Appellants deposit Kshs 1,000,000/= with the court as security within thirty days, failing which the stay lapses automatically; costs of the application abide the outcome of the appeal.

Key legal issues

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01

Substantial loss

Holding

The Appellants demonstrated substantial loss because the decree dispossessed them of land; eviction and alteration of title are not remediable by damages alone.

Reasoning

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.

p. 6
02

Unreasonable delay

Holding

Filing on 14th April 2025 following judgment of 18th March 2025 was without unreasonable delay.

Reasoning

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).

p. 6
03

Security for due performance of the decree

Holding

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.

Reasoning

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.

p. 6
04

Stay of costs against the 3rd Appellant

Holding

A stay of execution of costs is within the court's discretion notwithstanding that costs are enforceable as a monetary decree.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.A stay of execution of the Judgment delivered on 18th March 2025 is granted pending the hearing and determination of the Appeal
  2. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.