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ELCDismissedELCEP Misc No. E002 of 2025· [2026] KEELC 2109 (KLR)

Gichiriro & another v Nyoro Construction Company Ltd & another (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 2109 (KLR)

Environment and Land Court
20 April 2026
1,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, J) on an amended notice of motion dated 4-12-2025 by the Applicants, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules. The 1st Applicant had obtained a favourable decree of 7-6-2023 against the 1st Respondent in Murang'a CMELC E046 of 2022, and the 2nd Respondent auctioneer attached motor vehicle KBQ 154 U. Disputes arose over the execution, leading the trial court on 5-3-2025 to order the Applicants, their advocate and the auctioneer to avail the attached vehicle or pay its value, and later to issue warrants of arrest, confirmed by a ruling of 24-9-2025 committing the Applicants to civil jail for contempt. The Applicants sought a stay of the warrants and leave to appeal out of time against the ruling of 5-3-2025. The 1st Respondent opposed, arguing non-compliance with court orders and that the Applicants had no audience having not purged their contempt. The court framed four issues: fair hearing, whether the opportunity to show cause was taken, whether the motion was properly before the court, and whether leave to appeal out of time was warranted. It held the Applicants received a fair hearing and failed to account for execution proceeds; that the motion was incompetent because it was anchored on no appeal, Order 42 rule 6 applying only to stays in case of appeal; and that no plausible reason for the delay in filing the appeal was given. The motion was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Fair hearing in the trial court

Holding

The Applicants were given a fair hearing; the ruling of 5-3-2025 was made in the presence of their counsel and gave them time to account for the proceeds of execution.

Reasoning

The court found that the ruling of 5-3-2025 was delivered in the presence of the Applicants' counsel and granted time until 12-3-2025 to account for the execution proceeds. Further, for two months the 2nd Respondent could have accounted for the proceeds but instead filed the motion dated 19-5-2025 seeking to set aside the orders. Fair hearing was therefore afforded.

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02

Whether the Applicants took the opportunity to show cause

Holding

They did not; the auctioneer failed to return the warrants of attachment and sale with an explanation as required.

Reasoning

The warrants of attachment and sale impose timelines on the auctioneer to return them to court whether executed or not and with an explanation. Had the auctioneer complied, the notice to show cause would not have been necessary. The Applicants never accounted for the proceeds of execution, so the trial magistrate acted within her powers.

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03

Whether the motion is properly before the court

Holding

It is not; it is not anchored on any appeal and there is no record of appeal, yet the motion relies on Order 42 rule 6 which concerns stay in case of appeal.

Reasoning

The suit is classified as ELCEP Misc No. E002 of 2025, which is not an appeal. Since Order 42 rule 6 deals with stay in case of appeal and no appeal exists, the motion cannot stand under that provision. The court rhetorically asked where the appeal was and found the motion incompetent for lack of anchorage.

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04

Leave to appeal out of time

Holding

No good reason for the delay was demonstrated.

Reasoning

The only explanation offered was the Applicants' belief that the trial court would allow the 2nd Respondent's application of 19-5-2025. The court found this neither plausible nor satisfactory, noting no illness, incapacity, delay in obtaining proceedings or ruling, or mistake of counsel was pleaded, and the application relied on was itself filed one and a half months late.

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Legal principles established

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  • A stay of execution under Order 42 rule 6 of the Civil Procedure Rules is only available where there is an appeal; where the suit is a miscellaneous matter and not an appeal, the motion under that rule is not properly before the court.
  • A trial magistrate has power to ensure accountability in the execution process, including issuing orders to establish how warrants were executed.

Court orders

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  1. 1.The motion dated 4-12-2025 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 3 rule 1
On appeal from
Murang'a Chief Magistrate's Court (Environment and Land)
Murang'a CMELC E046 of 2022
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules

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, "Gichiriro & another v Nyoro Construction Company Ltd & another (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 2109 (KLR)", Case Analysis (2026). ELCEP Misc No. E002 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2109/eng@2026-04-20

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