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ELCPartially AllowedNot stated on the face of the judgment (application dated 4/11/2025)· [2026] KEELC 1215 (KLR)

Gikonyo v Thiga & 4 others (Environment and Land Appeal E231 of 2025) [2026] KEELC 1215 (KLR)

High Court of Kenya
26 February 2026
JKJ G Kemei
1,884 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The High Court paused execution of a land judgment pending appeal because demolition of the appellant's structures would make the appeal pointless.

What this practically means

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Executive summary

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This ruling by J G Kemei, Judge of the High Court at Nairobi, determines the Appellant's Notice of Motion dated 4/11/2025 seeking a stay of execution of the judgment delivered on 23/10/2025 and all consequential orders pending appeal, with costs of the application to abide the appeal. The judgment below declared the estate of the late Damaris Wanjiku Nguku, represented by the 5th Defendant, the lawful owner of Land Parcel No. Nairobi Block I35/245 and dismissed the Appellant's claim; a 30-day temporary stay had lapsed. The Appellant argued that execution would entail demolition of structures including a perimeter fence and storehouse, permanently altering the land and rendering the appeal nugatory. No response was filed despite service. The court set out the Order 42 rule 6(2) conditions and the Butt vs Rent Restriction Tribunal principles. It found the application filed about eleven days after judgment, thus without undue delay. On substantial loss, applying Tropical Commodities and James Wangalwa, it held that execution alone is not substantial loss but was persuaded that demolition of improvements would cause substantial loss and destroy the appeal's substratum. On security, relying on Aron C. Sharma, it accepted the applicant's undertaking to comply with any conditions and exercised its discretion to make no order as to security for costs. The application was allowed as prayed, with costs abiding the outcome of the appeal.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

Filing eleven days after judgment was without undue delay

Reasoning

Judgment was delivered on 23/10/2025 and the application filed on 4/11/2025, an interval of about eleven days. The court held this satisfied the second condition under Order 42 rule 6(2).

p. 3
02

Whether substantial loss would result

Holding

Demolition of structures and permanent alteration of the land would cause substantial loss and render the appeal nugatory

Reasoning

Relying on Tropical Commodities and James Wangalwa, the court noted that mere execution is not substantial loss. However, the appellant risked demolition of the perimeter fence and storehouse and deprivation of occupation, which would destroy the substratum of the appeal.

p. 4
03

Whether security was provided

Holding

The applicant's undertaking to comply with any conditions satisfied the security condition, and the court exercised discretion to make no order as to security

Reasoning

The applicant offered an undertaking to comply with any conditions the court might impose. On that basis the court found the third condition satisfied and, in its discretion, declined to order security for costs.

p. 4

Legal principles established

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  • An appeal does not operate as an automatic stay of execution; the conditions in Order 42 rule 6 must be satisfied
  • Execution is a lawful process and is not by itself a ground for granting a stay; the applicant must show the execution will irreparably affect him and render the appeal nugatory
  • Substantial loss is a qualitative concept, not a mathematical formula
  • Security under Order 42 rule 6 guarantees due performance of the decree, not punishment of the judgment debtor

Court orders

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  1. 1.Stay of execution of the judgment delivered on 23/10/2025 and all consequential orders granted pending the hearing and final determination of the Appeal
  2. 2.No order as to security for costs
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e), 65
  • Civil Procedure RulesOrder 22 Rule 25, Order 42 Rule 6 (including 6(1), 6(2)), Order 51 Rule 1
  • Civil Procedure RulesOrder XLI Rule 4(2)(b) (as referenced in Butt vs Rent Restriction Tribunal)

Cases cited (6)

  • Butt vs Rent Restriction Tribunal
    [1979]
  • Tropical Commodities Suppliers Ltd & Others vs. International Credit Bank Ltd (in liquidation)
    [2004] 2 EA 331
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] KEHC 1094 (KLR)
  • Silverstein N. Chesoni
    [2002] 1 KLR 867
  • Mukuma vs Abuoga
  • Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 others
    (2014) eKLR
On appeal from
Trial court (not named in the judgment)
Not stated
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A, 63(e) & 65 of the Civil Procedure Act

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, "Gikonyo v Thiga & 4 others (Environment and Land Appeal E231 of 2025) [2026] KEELC 1215 (KLR)", Case Analysis (2026). Not stated on the face of the judgment (application dated 4/11/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1215/eng@2026-02-26

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