Kimani & 4 others (Suing as legal representatives of Joseph Maina Kimani) v Ithagu (Sued as the legal administrator of the Estate of the Late Hezekiah Ighagu Mwangi) (Land Case 231 of 2012) [2026] KEELC 1716 (KLR)

The court noted that execution is a lawful process and that the Applicant must show how execution shall irreparably affect him or alter the status quo. The Applicant deponed that the Plaintiffs might subdivide the suit land as per the decree, which would change the substratum of the appeal. The court balanced this against the decree holder's right to enjoy the fruits of the judgment, and granted the stay only upon the Applicant furnishing security of Kshs. 200,000/=

The court observed that judgment was delivered on 13th October 2025 and the application was filed on 20th November 2025, more than one month later, with no explanation for the delay offered. Despite finding unexplained delay, the court still exercised its discretion to grant a conditional stay, treating delay as one factor in balancing the competing rights of the parties rather than as a complete bar to the relief sought.

Counsel for the Respondent raised the issue that the Notice of Appeal was lodged out of time and that an application to strike it out was pending in the Court of Appeal. The court held it was not seized of that matter but took judicial notice of the fact, which may or may not terminate proceedings at the superior court. The validity of the appeal was therefore left to the appellate court to determine.

The court held that the issue of security for due performance of the decree is discretionary and it is upon the court to determine it. The Applicant stated he was ready and willing to furnish security. Relying on the purpose of security under Order 42 as guaranteeing due performance rather than punishing the judgment debtor, the court ordered a deposit of Kshs. 200,000/= in a joint interest-earning account of the advocates within 30 days, failing which the stay lapses.