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ELCDismissedNot stated in the judgment· [2026] KEELC 2084 (KLR)

Gakobo & 5 others v Kihara (Environment and Land Appeal E046 of 2025) [2026] KEELC 2084 (KLR)

High Court of Kenya
20 April 2026
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court at Murang'a refused to pause execution of a land judgment because the losing party showed no real loss and offered no refund security.

What this practically means

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Executive summary

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This is a ruling of the High Court at Murang'a (M. N. Gicheru, J) delivered virtually on 20 April 2026 on a notice of motion dated 20-11-2025 in which the appellants, who lost at trial on 24-10-2025, sought a stay of execution of the decree restraining them from trespassing on, picking tea from, or cultivating land parcel No. Loc.3/Gituru/484, and an order permitting them to continue harvesting tea from the two-acre portion of the suit land pending their intended appeal. The respondent opposed, asserting registered ownership, that the appellants had not demonstrated substantial loss nor offered security, and that tea is a perishable and wasting asset so continued harvesting would occasion him substantial loss. The court cured the applicants' mis-citation of order 22 in place of order 42 under order 51 rule 10(2) and order 2 rule 14, then applied the three cumulative conditions in order 42 rule 6(2). It found no substantial loss proved, delay only borderline under section 79G of the Civil Procedure Act, and no security offered, since the appellants never undertook to refund tea proceeds or even state their value. The motion was dismissed with costs in the cause.

Key legal issues

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01

Whether the curable-defect principle applies to the wrong citation of order 22 in place of order 42

Holding

The omission was curable under order 51 rule 10(2) of the Civil Procedure Rules

Reasoning

The court noted that the applicants' written submissions cited the correct order (42) rather than order 22 cited in the notice of motion. Relying on order 51 rule 10(2) and order 2 rule 14, the court held that a technicality or want of form not affecting the substance of an application cannot defeat it. The application was therefore properly before the court and determined on its merits.

p. 2
02

Whether the appellants would suffer substantial loss if stay is not granted

Holding

No substantial loss was proved

Reasoning

The court found the eighteen grounds and the supporting affidavit devoted entirely to alleged errors by the trial magistrate, with nothing showing what the appellants have on the suit land, whether they have homes there, or how being unable to pick tea on land declared to belong to the respondent would occasion them substantial loss.

p. 2
03

Whether the application was filed without unreasonable delay

Holding

The application was filed without unreasonable delay, although on the borderline

Reasoning

The court was prepared to hold that the appeal and the notice of motion were filed without unreasonable delay, though on the borderline of the 30 days spelt out in section 79G of the Civil Procedure Act. This condition was thus only marginally satisfied.

p. 3
04

Whether the appellants offered security for the due performance of the decree

Holding

No security was offered

Reasoning

The appellants did not state that, should they lose the appeal, they would be ready to refund the respondent all proceeds from the sale of the tea. Even the amount to be earned from the tea was not stated, and without guidance from the appellants any figure imposed by the court would be speculative.

p. 3

Legal principles established

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  • Order 42 rule 6(2) of the Civil Procedure Rules prescribes three conditions precedent to the grant of a stay of execution pending appeal: substantial loss, application without unreasonable delay, and security for the due performance of the decree - and all three must exist together.
  • Mis-citation of the applicable provision in a notice of motion is a curable defect that does not defeat the application.

Court orders

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  1. 1.The notice of motion dated 20-11-2025 is dismissed
  2. 2.Costs in the cause
On appeal from
Trial court (magistrates' court)
Not stated in the judgment
Jurisdiction invoked
Orders 10 rule 11 and 42 rule 6 of the Civil Procedure Rules (intended appeal to the High Court under section 79G 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, "Gakobo & 5 others v Kihara (Environment and Land Appeal E046 of 2025) [2026] KEELC 2084 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2084/eng@2026-04-20

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