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ELCPartially AllowedNotice of motion dated 20-1-2026 (arising from appeal against judgment in Kenol MELC Case No. E007/2022)· [2026] KEELC 2804 (KLR)

Gitura v Kariuki (Land Case Appeal E002 of 2026) [2026] KEELC 2804 (KLR)

Environment and Land Court
12 May 2026
748 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court paused execution of a land judgment because the losing party had built a permanent house on it, pending his appeal by January 2027.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Murang'a (M.N. Gicheru J) determines a notice of motion dated 20-1-2026 by the Appellant seeking a stay of execution of the judgment in Kenol MELC Case No. E007/2022 dated 5-12-2025 and all consequential orders, pending the hearing and determination of an appeal against that judgment. The motion was brought under Order 42 rule 6(1) and (2), Order 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. The Appellant argued that the appeal raised triable issues and that he would suffer irreparable loss if the Respondent executed the decree. The Respondent opposed, contending that no triable issues were raised, that the Appellant failed to prove root of title or substantial loss, and that the application was filed after an unexplained delay of almost two months. The court identified three conditions for stay under Order 42 rule 6: substantial loss, expeditious filing, and security for due performance of the decree. It found substantial loss only on the basis of the trial court's own finding that the Appellant may have built a permanent house on the suit land; found the Respondent had nothing to lose beyond costs since the land would remain available to the successful party; and held there was no inordinate delay, applying Order 50 rule 4 which excludes the period from December 21st to January 13th. The motion was allowed in terms of prayer 3, with costs in the cause, and the appeal was directed to be heard and determined before 13-1-2027.

Key legal issues

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01

Whether the Applicant proved substantial loss

Holding

Substantial loss found only because the trial judgment recorded that the Applicant had built a permanent house on the suit land; no other evidence of loss was tendered

Reasoning

The court observed that the Applicant tendered no evidence of what he stood to lose - no photographs of developments on the land. The only indicator was the trial court's own finding that the Applicant may have built a permanent house on the land. On that sole basis the court was persuaded that the Applicant would suffer substantial loss warranting a stay.

p. 2
02

Whether security for the due performance of the decree was provided

Holding

Security was not an impediment; other than costs, the Respondent had nothing to lose as the land would remain available to the successful party

Reasoning

The court found that apart from the costs of the suit, the Respondent would suffer no prejudice if execution was stayed, because in the event the appeal was dismissed the suit land would still be available to the successful party. This effectively satisfied the security consideration without any deposit being ordered.

p. 2
03

Whether the application was filed without inordinate delay

Holding

The appeal and application were filed within time, applying Order 50 rule 4 on the suspension of time over the December/January vacation period

Reasoning

The judgment was delivered on 5-12-2025 and the appeal was filed on 13-1-2026. Applying Order 50 rule 4, which excludes the period from December 21st to January 13th in computing time, the court concluded that neither the appeal nor the motion was filed after unreasonable delay.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must prove substantial loss, expeditious filing of the motion, and offer security for the due performance of the decree.
  • Under Order 50 rule 4 of the Civil Procedure Rules, time does not run from December 21st to January 13th.

Court orders

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  1. 1.Stay of execution of the judgment in Kenol MELC Case No. E007/2022 dated 5-12-2025 and all consequential orders, pending the hearing and determination of the appeal (allowed in terms of prayer 3)
  2. 2.Costs in the cause
  3. 3.Appeal to be heard and determined before 13-1-2027
On appeal from
Kenol Magistrates' Environment and Land Court
E007/2022
Jurisdiction invoked
Order 42 rule 6(1) and (2) and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution of Kenya

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, "Gitura v Kariuki (Land Case Appeal E002 of 2026) [2026] KEELC 2804 (KLR)", Case Analysis (2026). Notice of motion dated 20-1-2026 (arising from appeal against judgment in Kenol MELC Case No. E007/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2804/eng@2026-05-12

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