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ELCAllowedNotice of Motion Application dated 04.05.2026 (Appeal from ELC Case No. 137 of 2018, Maua)· [2026] KEELC 3120 (KLR)

ALBIONO MUNJURI M’ATHERU v JOEL NTONJA M’MUKARIA

Environment and Land Court of Kenya
21 May 2026
2,496 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court paused the eviction pending appeal, but only because the applicant must deposit Kshs. 500,000 in a joint escrow account within 45 days.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 04.05.2026 brought under Order 42 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010, seeking stay of execution of a judgment delivered on 08.04.2026 by Hon. Dominic Macharia in the ELC Court at Maua (ELC Case No. 137 of 2018) and maintenance of status quo over the suit property Nyambene/Kirindine 'A'/1, pending appeal. The lower court had decreed the applicant's eviction. The respondent opposed, asserting lawful ownership and entitlement to enjoy the fruits of the judgment, and noting the applicant had offered no security. Framing three issues - sufficient cause, substantial loss, and security - the court found that the timeous filing of an appeal raising arguable issues constituted sufficient cause; that eviction, with its attendant demolition of structures, would occasion substantial loss not compensable in monetary terms should the appeal succeed; and that the question of security lies within the court's discretion, it not being mandatory for an applicant to intimate willingness to provide security. The court nonetheless rejected the applicant's submission that security is unnecessary for non-monetary decrees, and guided by Gitahi v Warugongo, fixed security at Kshs. 500,000/- to be deposited in an escrow account within 45 days, failing which the stay lapses automatically. The application was allowed with costs to the respondent, assessed at Kshs. 15,000/-, payable within 14 days. Dated, signed and delivered at Meru on 21 May 2026 by Oguttu Mboya, Judge.

Key legal issues

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01

Sufficient cause

Holding

Sufficient cause was established by the timeous filing of the appeal raising arguable issues, though arguability does not guarantee success

Reasoning

The applicant lodged a memorandum of appeal dated 04.05.2026 within the prescribed period under Section 79G of the Civil Procedure Act. The court held that filing an appeal raising arguable issues constitutes sufficient cause, while cautioning that whether the appeal succeeds is a matter for plenary hearing.

p. 3
02

Substantial loss

Holding

Eviction pursuant to the decree would expose the applicant to substantial loss not compensable in monetary terms

Reasoning

The lower court decreed eviction from the suit property, which the applicant partly uses for storage and garaging vehicles. If the eviction is executed and the appeal later succeeds, the loss may not be remediable in monetary terms. Citing Kenya Shell Ltd v Kabiru and James Wangalwa v Cheseto, the court held such loss must be averted.

p. 3
03

Security

Holding

Security is a matter for the court's discretion, not dependent on the applicant's intimation of willingness, and must not be onerous

Reasoning

Order 42 Rule 6(2)(b) does not make it mandatory for an applicant to intimate willingness to provide security; it is a matter of practice and good faith. The court must engage with security on its own motion. The court rejected the applicant's counsel's submission that security is unnecessary for non-monetary decrees, and fixed security at Kshs. 500,000/- in an escrow account, guided by Gitahi v Warugongo.

p. 4

Legal principles established

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  • The filing of an appeal raising arguable issues constitutes sufficient cause for stay of execution pending appeal
  • An applicant for stay is not legislatively required to intimate willingness to provide security; the question of security is for the court's discretion
  • Security ordered on a stay application must not be onerous or unreasonable and must not negate the right of access to justice

Court orders

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  1. 1.The Application dated 04.05.2026 be and is hereby allowed
  2. 2.An order for stay of execution of the judgment and the decree of the lower court pending the hearing and determination of the subject appeal
  3. 3.The Applicant shall provide security in the sum of Kshs. 500,000/= only to be deposited in an escrow account in the names of the advocates for the parties, to be opened and operationalized within 45 days
  4. 4.The escrow account shall be opened and operationalized in a reputable bank or financial institution in the Republic of Kenya
  5. 5.In default of providing security within the set timelines, the order of stay of execution shall lapse automatically and the Respondent shall be at liberty to execute
  6. 6.Costs of the Application awarded to the Respondent, assessed at Kshs. 15,000/= only, payable within 14 days

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)(b)
  • Civil Procedure Rules, 2010Order 51 Rules 1 and 3
  • Civil Procedure ActSection 79G
  • Constitution of Kenya, 2010Article 48

Cases cited (3)

  • Kenya Shell Limited versus Benjamin Karuga Kabiru and another
    [1986] eKLR
  • James Wangalwa versus Agnes Naliaka Cheseto
    [2012] eKLR
  • Gitahi versus Warugongo
    [1988] eKLR
On appeal from
ELC Court of Kenya at Maua (Hon. Dominic Macharia)
ELC Case No. 137 of 2018 / Maua CMELC No. 137 of 2019
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010

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, "ALBIONO MUNJURI M’ATHERU v JOEL NTONJA M’MUKARIA", Case Analysis (2026). Notice of Motion Application dated 04.05.2026 (Appeal from ELC Case No. 137 of 2018, Maua). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3120/eng@2026-05-21

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