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ELCPartially AllowedELC OS NO. 5 OF 2021· [2026] KEELC 2422 (KLR)

Aroko & 2 others (Suing as personal representatives and administrators of the Estate of Gonda Elkana Syongoh - Deceased) v Macharia (Enviromental and Land Originating Summons 5 of 2021) [2026] KEELC 2422 (KLR)

Environment and Land Court
30 April 2026
4,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused an eviction pending appeal because the defendant kept paying monthly compensation, showing partial compliance doesn't kill stay applications.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (O. A. Angote J) on the Defendant's Notice of Motion dated 30th June 2025 seeking stay of execution of the judgment of E.M. Washe J delivered on 29th May 2025, which declared the Plaintiff the lawful registered owner of Nairobi/Block 91/31 - Golden Gate Estate South B, ordered the Defendant to vacate, issued a permanent injunction, and awarded mesne profits of Kshs 60,000 per month. The Defendant, intending to appeal to the Court of Appeal, relied on Order 42 Rule 6 of the Civil Procedure Rules, citing her elderly mother's long occupation of the property as her only home and the sentimental significance of the matrimonial home, and offered continued payment of mesne profits as security. The Plaintiff, administrator of the estate of the deceased registered owner who purchased the property at a statutory auction in 2002, opposed, arguing no substantial loss and that the dispute, spanning over two decades of litigation, had been conclusively determined. The court identified a single issue: whether the conditions for stay under Order 42 Rule 6 were met. It declined to consider the arguability of the intended appeal, holding it procedurally improper for a court to assess the arguability of an appeal from its own decision. It found the application filed timeously; that eviction would cause substantial hardship not compensable in damages; that payment of mesne profits was partial compliance with an ancillary pecuniary obligation, not execution of the substantive relief nor a waiver of the right to stay; and that continued monthly deposits into a joint interest-earning account constituted adequate security. The application was allowed with a conditional stay granted, each party bearing their own costs.

Key legal issues

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01

Whether the application was made without unreasonable delay

Holding

The application was filed timeously, within approximately one month of the judgment, and the Respondent conceded no delay

Reasoning

The judgment was delivered on 29th May 2025, the notice of appeal filed on 3rd June 2025 and the motion on 30th June 2025. Relying on Jaber Mohsen Ali v Priscillah Boit on what constitutes unreasonable delay, the court found the filing within approximately one month satisfied the timeliness requirement, a position the Respondent also conceded.

p. 17
02

Whether the Applicant demonstrated substantial loss

Holding

Yes. Eviction would occasion substantial hardship, loss and dislocation to the Applicant and her elderly mother, not compensable by damages, while the Respondent would suffer no irreparable prejudice

Reasoning

Applying Rhoda Mukuma, Century Oil/Kenya Shell and James Wangalwa, the court held that substantial loss goes beyond the ordinary consequences of execution. The suit property has been the Applicant's family home for over a decade and her mother's matrimonial home; eviction would irreversibly alter the status quo, whereas any loss of income to the Respondent is ascertainable and compensable.

p. 21
03

Whether partial compliance with the decree (payment of mesne profits) bars the application for stay

Holding

No. Payment of mesne profits is a distinct, restitution-capable pecuniary obligation and not execution of the substantive relief of vacant possession

Reasoning

The court distinguished the two obligations: vacant possession irreversibly alters the status quo, while mesne profits are refundable if the appeal succeeds. Following Jaribu Holdings, the decree had not been fully or substantially executed so as to render a stay futile, and the Applicant had not waived her right to seek a stay.

p. 21
04

Whether the requirement as to security was met

Holding

Yes. The Applicant's continued deposit of Kshs 60,000 monthly into a joint interest-earning account suffices as security

Reasoning

Relying on Arun C Sharma on the purpose of security under Order 42 - to guarantee due performance of the decree, not to punish the judgment debtor - the court accepted the Applicant's good faith in paying mesne profits and her willingness to continue, finding the security requirement satisfied.

p. 23

Legal principles established

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  • Arguability of the intended appeal is not a condition precedent for stay of execution under Order 42 Rule 6; a trial court should not assess the arguability of an appeal arising from its own decision
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay; the ordinary consequences of losing a case do not amount to substantial loss
  • Payment of mesne profits is compliance with an ancillary monetary component of a decree and does not amount to execution of the substantive relief of vacant possession, nor a waiver of the right to seek a stay

Court orders

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  1. 1.There be a conditional stay of execution of this court's judgement dated 29th May, 2025 pending the hearing and determination of the appeal before the Court of Appeal
  2. 2.The stay of execution is granted on condition that the Applicant continues to deposit the monthly sum of Kshs 60,000 on the 5th day of every month in a joint interest-earning account in the names of Counsel for the Applicant and the Respondent; in default, the stay will lapse
  3. 3.Parties to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Environment and Land Court ActSection 3
  • Civil Procedure ActSection 1A

Cases cited (12)

  • Vishram Ravji Halai vs Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365
  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
  • Antoine Ndiaye vs. African Virtual University
    [2015] eKLR
  • Jaber Mohsen Ali & another vs Priscillah Boit & another
    [2014] eKLR
  • Rhoda Mukuma v John Abuoga
    [1988] eKLR
  • Century Oil Trading Company Ltd vs Kenya Shell Limited
  • Muri Mwaniki & Wamiti Advocates Vs Wings Engineering Services Limited
    [2020] eKLR
  • Kenya Shell Limited vs Benjamin Karuga Kibiru & another
    [1986] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Machira t/a Machira & Co. Advocates v East African Standard
    [2002] eKLR
  • Jaribu Holdings Ltd vs Kenya Commercial Bank Ltd
    [2008] eKLR
  • Arun C Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others
    [2014] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Articles 50 and 159(2)(d) of the Constitution

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, "Aroko & 2 others (Suing as personal representatives and administrators of the Estate of Gonda Elkana Syongoh - Deceased) v Macharia (Enviromental and Land Originating Summons 5 of 2021) [2026] KEELC 2422 (KLR)", Case Analysis (2026). ELC OS NO. 5 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2422/eng@2026-04-30

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