Ndungu (Legal Repsentative of the Estate of James Ndunge Mburu (Deceased)) v Ntee (Legal Representative of the Estate of Ntii ole Nkaka (Deceased)) & another; Waithira (Legal Representative of the Estate of Elijah Kungu Waithigu (Deceased)) & 3 others (Interested Parties) (Environment and Land Appeal E054 of 2025) [2026] KEELC 2912 (KLR)
The bottom line
#A Kenyan court refused to pause execution of a land judgment because the applicant waited eight months to file — proving that even strong appeal grounds cannot rescue a late stay application.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellant/Applicant has satisfied the requisite threshold for the grant of an order for stay of execution of the judgment delivered on 11th March 2025, and the resulting decree, pending the hearing and determination of the intended appeal
Key legal issues
#Whether the conditions in Order 42 Rule 6(2) for stay of execution pending appeal were met
The application was dismissed for inordinate delay; substantial loss and arguability could not cure the failure of promptitude
The court accepted that the applicant may have raised arguable grounds concerning alteration of the land register, but the judgment was delivered in March 2025 and the stay application was only filed on 25th November 2025, after dismissal of review applications. This prolonged timeline undermined the requirement of promptitude. The court also noted that conflation of multiple rulings in one appeal raised questions of competence. Balancing the applicant's right of appeal against the respondents' right to enjoy the fruits of judgment, the discretion was exercised against a stay.
The balance between the applicant's effective appeal and the respondents' right to enjoy the fruits of judgment
The court applied the Machira principle that a successful party is entitled to the fruits of judgment and a stay court must not obsess over the intending appellant
Relying on Machira T/A Machira & Co Advocates v East African Standard, the court emphasized that judicial discretion on stay must be exercised with sight firmly fixed on the overriding objective of doing justice and preventing abuse of process, without disregarding the successful party. This balancing framework informed the assessment that inordinate delay tipped the balance in favour of the respondents.
Legal principles established
#- No stay of execution shall issue under Order 42 Rule 6(2) unless substantial loss is shown, the application is made without unreasonable delay, and security is given
- A successful party is ordinarily entitled to the fruits of his judgment, and delay in seeking a stay defeats promptitude
Court orders
#- 1.The Notice of Motion Application dated 25th November 2025 is dismissed, with costs awarded to the 1st and 2nd Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (Loitoktok)
- Loitoktok MCELC/E001/2024
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6 and Order 51 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya 2010
Relief refused
#Stay of execution of the judgment of 11th March 2025 and the decree issued on 6th November 2025 pending the hearing and determination of the intended appeal
The profound delay from March 2025 to November 2025 undermined the claim of promptitude under Order 42 Rule 6(2)
Costs
Costs awarded to the 1st and 2nd Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
no order for stay of execution shall be made unless, "the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant"
while the Applicant may have raised arguable grounds regarding the alteration of the land register, the profound delay in seeking the stay between the date of the delivery of the judgment in March 2025 and the filing of this application in November 2025 undermines the claim of promptitude
waiting from March 2025 to November 2025 to file this request is simply too long of a delay. Consequently, the Notice of Motion Application dated 25th November 2025 is hereby dismissed, with costs awarded to the 1st and 2nd Respondents.
The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage.
An arguable appeal is not one that must succeed, but one that raises even a single bona fide issue deserving consideration
Issues in the judgment
#The judgment states the decree was issued on 6th November 2025 following a judgment of 11th March 2025, and that the appeal was filed on 5th September 2025 via a memorandum dated 4th September 2025, with review applications dismissed in August 2025; the chronology of the decree issuing before the appeal was filed is unusual but internally stated as such
The coram mentions Interested Parties who were 'N/A' and are not named as parties in the body of the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu (Legal Repsentative of the Estate of James Ndunge Mburu (Deceased)) v Ntee (Legal Representative of the Estate of Ntii ole Nkaka (Deceased)) & another; Waithira (Legal Representative of the Estate of Elijah Kungu Waithigu (Deceased)) & 3 others (Interested Parties) (Environment and Land Appeal E054 of 2025) [2026] KEELC 2912 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2912/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.