Gakobo & 5 others v Kihara (Environment and Land Appeal E046 of 2025) [2026] KEELC 2084 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the curable-defect principle applies to the wrong citation of order 22 in place of order 42
The omission was curable under order 51 rule 10(2) of the Civil Procedure Rules
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.
Whether the appellants would suffer substantial loss if stay is not granted
No substantial loss was proved
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.
Whether the application was filed without unreasonable delay
The application was filed without unreasonable delay, although on the borderline
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.
Whether the appellants offered security for the due performance of the decree
No security was offered
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 20-11-2025 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.