Charles & another v Kamau & 2 others (Miscellaneous Application E327 of 2025) [2026] KEELC 1757 (KLR)
The bottom line
#The High Court dismissed an attempt to block eviction from a Gigiri property, confirming that filing an appeal does not automatically stop execution of a judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants are entitled to the orders sought, i.e. cancellation/nullification of the eviction notice and ancillary reliefs
Key legal issues
#Whether eviction could lawfully issue where the judgment was for specific performance and the respondents allegedly in breach
The court held the respondents were willing and ready to pay the balance and the applicants had frustrated payment; compliance was admitted to be a non-issue, so the eviction notice could stand
The applicants admitted in submissions that they did not dispute the respondents' willingness to pay. The respondents demonstrated willingness to pay the balance but were hindered by the applicants. Since the respondents were not in actual breach, no equitable basis existed to cancel the eviction notice.
Whether the eviction was premature pending the application for leave and stay of execution
No; an appeal does not operate as automatic stay, and the applicants failed to demonstrate irreparable harm or that the appeal would be rendered nugatory
The court applied Order 42 Rule 6(2) Civil Procedure Rules, noting that execution is lawful and the applicants had to show execution would irreparably affect them or render the appeal nugatory. The court found Cecilia had family (the applicants) who could stay with her, and the payment of Ksh 30,750,000 could fund another property; no nugatory-appeal proof was offered.
Whether the underlying judgment was irregular for want of jurisdiction
The issue of jurisdiction had already been determined in a ruling dated 24th/25th July 2025 dismissing an application to set aside the judgment, which ruling still stands despite the notice of appeal
The applicants' application seeking to set aside the judgment on jurisdictional grounds was dismissed, and that ruling remains in force notwithstanding the pending notice of appeal and application for leave. The court could not therefore treat the judgment as irregular.
Legal principles established
#- An appeal does not operate as an automatic stay of execution; the party seeking stay must satisfy the conditions in Order 42 Rule 6(2) Civil Procedure Rules
- A court cannot rewrite a contract for the parties; parties are bound by its terms absent pleaded and proved coercion, fraud or undue influence
Court orders
#- 1.The application dated 24th October 2025 is dismissed for lack of merit
- 2.The Respondents are to adhere to the terms of the Judgment dated 22nd June 2017 and pay the balance of the purchase price of Ksh 30,750,000
- 3.Upon satisfying that condition, the Applicants are to give vacant possession of Title No. Nairobi/Block/91/399 failing which eviction orders will issue
- 4.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; Civil Procedure Rules Order 42 Rule 6
Relief refused
#Cancellation and/or declaration of nullity of the eviction notice dated 29th July 2025
Execution is a lawful process; applicants failed to show irreparable harm or that the appeal would be rendered nugatory; appeal does not operate as automatic stay
Costs
Cost of the application to be awarded to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i. That the application dated 24th October 2025 lacks merit and hereby dismissed
ii. The Respondents are to adhere to the terms of the Judgement dated 22nd June 2017 and pay up the balance of the purchase price in the sum of Ksh 30, 750,000/=.
iii. Upon satisfying the condition above the Applicants are to give vacant possession of the suit property Land title No Nairobi/Block/91/399 to the respondents' failure to which eviction orders will issue.
A court of law cannot re-write a contract between parties. The parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.
It is trite law that an appeal does not operate as an automatic stay of execution.
Issues in the judgment
#Inconsistent dates in the judgment: the supporting affidavit describes a judgment dated 22nd June '207' (apparently 2017), an agreement dated 5th August 2017 in one place and 5th August 2009/6th August 2009 in others, and an application dated 4th August '2205'
Application described as dated 24th October 2024 in one passage and 24th October 2025 in the disposition
Ruling date given as 24th July 2025 in one place and 25th July 2025 in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles & another v Kamau & 2 others (Miscellaneous Application E327 of 2025) [2026] KEELC 1757 (KLR)", Case Analysis (2026). Notice of motion dated 24th October 2024 (HCC proceedings relating to Title No. Nairobi/Block 91/399 – Gigiri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1757/eng@2026-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.