Gichiriro & another v Nyoro Construction Company Ltd & another (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 2109 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Fair hearing in the trial court
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.
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.
Whether the Applicants took the opportunity to show cause
They did not; the auctioneer failed to return the warrants of attachment and sale with an explanation as required.
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.
Whether the motion is properly before the court
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.
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.
Leave to appeal out of time
No good reason for the delay was demonstrated.
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.
Legal principles established
#- 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
#- 1.The motion dated 4-12-2025 is dismissed with costs to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.