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ELCPartially AllowedNotice of Motion Application dated 20th February 2026 (arising from Naivasha MCELC No. E007 of 2024 - Eliab Karugu Muthima v Jose Tyres Limited & 2 others)· [2026] KEELC 3348 (KLR)

Jose Tyre Limited & another v Muthima (Environment and Land Miscellaneous Case E005 of 2026) (Environment and Land) [2026] KEELC 3348 (KLR)

Environment and Land Court of Kenya
4 June 2026
7,330 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court let two companies appeal late and stopped a land auction, provided they deposit the full judgment amount in court-ordered joint account within 30 days.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Naivasha (M.C. Oundo, J) on a Notice of Motion dated 20th February 2026 by Jose Tyres Limited and Christopher Muiruri Ndungu, the judgment-debtors in Naivasha MCELC No. E007 of 2024 (Eliab Karugu Muthima v Jose Tyres Limited & 2 others). The Applicants sought leave to appeal out of time under Section 79G of the Civil Procedure Act and a stay of execution of the judgment and decree delivered on 9th December 2025, alleging their former advocates never notified them of the judgment date, and that they only discovered the judgment on 12th February 2026 when the Respondent initiated execution, including a threatened public auction of Land Parcel Naivasha Municipality Block 9/112. The Respondent opposed, contending both Applicants testified on 27th November 2025 when the suit was fixed for judgment, that the delay of 76 days was unexplained, that the decree was a money decree and he was a man of means capable of refunding, and that the 2nd Applicant had no proprietary interest in the suit property. Framing two issues - extension of time and stay of execution - the court applied the Salat principles and Mutiso factors, held that although the delay was 73 days the Applicants acted within 8 days of discovering the execution threat, and noted that land rights are highly protected, warranting a day in court. On substantial loss, the court held that execution by forced sale of real estate risks irreversible third-party interests, discharging the Order 42 Rule 6(2) conditions. Leave to file the record of appeal within 45 days was granted, and a stay was granted conditional on depositing the entire decretal sum into a joint interest-earning account within 30 days, with no order as to costs.

Key legal issues

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01

Whether the Applicants established sufficient cause for extension of time to file an appeal out of time under Section 79G

Holding

Leave to appeal out of time was granted; the explanation of lack of notice of the judgment was accepted and no prejudice to the Respondent was shown

Reasoning

The court applied the Salat principles and the Mutiso factors. Although the delay was 73 days, the Applicants acted within 8 days of discovering the execution threat on 12th February 2026. Because land rights are highly protected, courts lean toward allowing parties their day in court on proprietary disputes, and the Respondent demonstrated no prejudice.

p. 10
02

Whether the Applicants demonstrated substantial loss justifying a stay of execution

Holding

Substantial loss was established because the mode of execution was the forced sale of immovable property, which would crystallise third-party interests and render the appeal nugatory

Reasoning

Applying Kenya Shell v Kibiru and Mukuma v Abuoga, the court held that although the decree had a money value, execution was by public auction of land. Preserving the suit property avoids multi-party complications involving innocent auction purchasers, so the first condition under Order 42 Rule 6(2) was discharged.

p. 12
03

Whether the application for stay was brought without unreasonable delay

Holding

The application was brought without undue delay because it was filed 8 days after the Applicants discovered the execution threat

Reasoning

The Respondent counted 76 days from the judgment, but the court measured delay from the Applicants' claimed date of discovery of the auction plans. Moving with speed of 8 days showed the Applicants did not sit on their rights once they knew the land was to be auctioned.

p. 12
04

Security for the due performance of the decree

Holding

A conditional stay was granted, conditioned on deposit of the entire decretal sum into a joint interest-earning account

Reasoning

Applying Matata v Rono, the court balanced the Respondent's right to enjoy the fruits of judgment against the Applicants' right to ensure the appeal is not rendered academic, using security to place the parties on equal footing under the overriding objective.

p. 13

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available only to a deserving party at the court's discretion
  • Where execution is by forced sale of real estate, the court will prioritise preserving the suit property to avoid third-party complications
  • The purpose of a stay of execution is to preserve the subject matter in dispute so that the appeal, if successful, is not rendered nugatory

Court orders

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  1. 1.Leave granted to the Applicants to file and serve their Record of Appeal within forty-five (45) days from the date of the Ruling
  2. 2.Stay of Execution of the decree in MCELC No. E007 of 2024 granted pending the hearing and determination of the Appeal, on condition that the Applicants deposit the entire decretal sum into a joint interest-earning account in the names of counsel for both parties within thirty (30) days
  3. 3.In default of compliance with any of the above conditions, the stay of execution shall stand vacated and the Respondent shall be at liberty to proceed with execution
  4. 4.No costs awarded
On appeal from
Naivasha Magistrates' Court (MCELC No. E007 of 2024)
MCELC No. E007 of 2024
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 42 Rule 6, Order 50 Rule 4 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, "Jose Tyre Limited & another v Muthima (Environment and Land Miscellaneous Case E005 of 2026)  (Environment and Land) [2026] KEELC 3348 (KLR)", Case Analysis (2026). Notice of Motion Application dated 20th February 2026 (arising from Naivasha MCELC No. E007 of 2024 - Eliab Karugu Muthima v Jose Tyres Limited & 2 others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3348/eng@2026-06-04

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