Njoroge v Mwema & another (Environment and Land Appeal E011 of 2024) [2026] KEELC 3342 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the appellant demonstrated substantial loss warranting stay of execution of the costs order
No substantial loss demonstrated; a party who lost twice and litigated through an unqualified person cannot claim inability to pay costs
The appellant lost in the lower court and on appeal, and was allowed a rehearing only because he had been represented by an unqualified person. He did not show he cannot pay the adjudged costs, nor that the respondents could not refund the costs if he ultimately succeeded. Additional directions on expeditious disposal of the lower court suit were also not complied with.
Whether the appellant would suffer irreparable loss if ordered to pay costs
No irreparable loss shown; payment of costs is recoverable if the appellant eventually succeeds
The court analogised the appellant's position to a defendant paying thrown away costs after being given a chance to defend a suit that had proceeded exparte. The respondents own the suit land, which is worth more than the costs, so they can refund any costs paid if the appeal later succeeds.
Balance of convenience and applicable principles for stay pending appeal
Balance of convenience is an injunction concept under Giella v Cassman Brown; the applicable stay principles are those in order 42 rule 6(2), all of which must be met
The court distinguished the balance-of-convenience test as applicable to injunctions, holding that for stay of execution the order 42 rule 6(2) conditions govern: substantial loss, filing without inordinate delay, and security for due performance. The appellant, having lost twice and still litigating, must not fear paying costs.
Legal principles established
#- All three conditions for stay of execution under order 42 rule 6(2) — substantial loss, no inordinate delay, and security — must be satisfied before stay is granted
Court orders
#- 1.The motion dated 14-8-2025 dismissed with costs
- Jurisdiction invoked
- Articles 164 and 50 of the Constitution; sections 1B, 3A, 18 and 63(e) of the Civil Procedure Act; order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Mwema & another (Environment and Land Appeal E011 of 2024) [2026] KEELC 3342 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3342/eng@2026-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.