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ELCDismissedNot stated in judgment (notice of motion dated 10-11-2025)· [2026] KEELC 1137 (KLR)

Mwangi v Mbuki & 4 others (Environment and Land Case E009 of 2021) [2026] KEELC 1137 (KLR)

High Court of Kenya
2 March 2026
1,022 words in judgment
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The bottom line

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Kenya's High Court dismissed a nine-month-delayed stay application, confirming all three Order 42 conditions must be met and losing only costs is not substantial loss.

What this practically means

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Executive summary

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This is a first-instance ruling by the High Court at Murang'a (M.N. Gicheru, Judge) on a notice of motion dated 10-11-2025 brought by the Plaintiff under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 and 42 of the Civil Procedure Rules. The Applicant sought a stay of further proceedings and of execution of the judgment delivered on 29-1-2025 pending an intended appeal to the Court of Appeal, plus costs to abide the appeal's outcome. The background was that the Applicant's lower-court suit, which sought to nullify the 1st and 2nd Defendants' registration as proprietors of L.R. No. Loc.20/Mirira/4481, was dismissed. He filed a notice of appeal and an application to lodge the record of appeal out of time (COAAPPOL/E167/2025, pending in Nyeri), but faced a prohibitory order and a notice of settling terms of sale of his land, Loc.20/Mirira/8660, for failing to pay taxed costs of Kshs 349,330/=. The Respondents opposed, arguing the dismissal was a negative order with nothing to stay. The court applied the three conjunctive conditions in Order 42 rule 6(2) and found the Applicant failed all three: no substantial loss (he retains his land; only costs are being executed), inordinate delay of over nine months, and no security offered. The court noted the application seemed precipitated by the demand for costs. The motion was dismissed with costs on 2 March 2026.

Key legal issues

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01

Substantial loss

Holding

No substantial loss shown because the Applicant retains his land and faces execution only for taxed costs

Reasoning

The Applicant's suit seeking nullification of the Respondents' registration was dismissed; the dismissal was a negative order not evicting him. He remains in occupation of his parcel No. Loc.20/Mirira/8660, and the only ongoing execution is for taxed costs of Kshs 349,330/=. Loss of costs does not amount to substantial loss, especially where he has not claimed the Respondents cannot refund if the appeal succeeds.

02

Unreasonable delay

Holding

Filing more than nine months after judgment is inordinate delay

Reasoning

Judgment was delivered on 29-1-2025 but the motion was filed on 10-11-2025, over nine months later. The court held that had the application been made within the time allowed for appeal it would probably have satisfied this condition, but a period exceeding nine months is inordinate.

p. 3
03

Security

Holding

No security offered for the decree or for costs of the intended appeal

Reasoning

The supporting affidavit did not state that the Applicant could meet the escalating costs the Respondents would incur opposing the appeal, nor that the Respondents could refund the taxed costs if the appeal succeeded. The application appeared precipitated by the demand for costs.

p. 3

Legal principles established

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  • The three conditions in Order 42 rule 6(2) for stay of execution pending appeal are conjunctive, not disjunctive; failure to satisfy even one defeats the application
  • A stay of execution cannot attach to a negative order of dismissal which does not direct the applicant to do anything or surrender anything

Court orders

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  1. 1.The motion dated 10-11-2025 is dismissed
  2. 2.Costs of the application to the Respondents
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40 and 42 of the Civil Procedure Rules

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, "Mwangi v Mbuki & 4 others (Environment and Land Case E009 of 2021) [2026] KEELC 1137 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated 10-11-2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1137/eng@2026-03-02

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