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ELCDismissedELC NO. 1186 OF 2015· [2026] KEELC 3429 (KLR)

Thiong'o (Suing in her capacity as the administrator of the Estate of the Late Dedan Thiong'o Kingangi - Deceased) v Thube (Environment and Land Case 1186 of 2015) [2026] KEELC 3429 (KLR)

Environment and Land Court
5 June 2026
4,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who waited eight months before asking the court to pause a judgment lost his stay application despite having strong arguments on everything else.

What this practically means

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Executive summary

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The Judgment Debtor, Samuel Kimani Thube, moved the Environment and Land Court by Notice of Motion dated 11th November 2024 under Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of the judgment delivered on 7th March 2024 pending his appeal, Court of Appeal Civil Appeal No. 399 of 2024. The judgment had granted the Respondent, Jane Wanjiru Thiongo, an injunction restraining the Applicant from trespassing, alienating, damaging or continuing construction on parcel Dagoretti/Uthiru/988, and directed that ownership and distribution of the property be determined in the High Court, Family Division, to the Applicant's exclusion. The Respondent opposed, contending the application was filed about eight months after judgment without explanation, that she had begun enjoying the fruits of the judgment, and that the Applicant's occupation amounted to intermeddling with the estate of the deceased registered proprietor. The court framed a sole issue: whether the Applicant had demonstrated the conditions for stay. Applying Order 42 Rule 6(2) and the authorities, it found substantial loss established - enforcement would dispossess the Applicant of long-held possession and risk rendering the appeal nugatory - and accepted his offer of security. However, the delay of approximately eight months from judgment, and nearly six months after filing the Memorandum of Appeal, was held inordinate and unexplained; typed proceedings are not a prerequisite for a stay application. Since the three conditions are conjunctive and must be met simultaneously, the application failed and was dismissed with costs on 5th June 2026.

Key legal issues

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01

Unreasonable delay in filing the stay application

Holding

The delay of approximately eight months from judgment and nearly six months after the Memorandum of Appeal was inordinate and unexplained, defeating the first limb of Order 42 Rule 6(2)

Reasoning

Judgment was delivered on 7th March 2024; the Memorandum of Appeal was dated 27th May 2024; the application was not filed until 11th November 2024. Counsel's explanation that typed proceedings were being pursued was rejected because proceedings are not required before moving for stay. Such delay undermines the requirement of Order 42 Rule 6 and prejudices the successful litigant's enjoyment of the fruits of judgment.

p. 15
02

Substantial loss

Holding

The Applicant demonstrated substantial loss because enforcement of the injunction would dispossess him of property he has occupied since 1992, and the exclusion from succession proceedings risked rendering the appeal nugatory

Reasoning

The impugned judgment restrained the Applicant from accessing, occupying or continuing activities on the suit property. Enforcement before the appeal is heard would alter the status quo fundamentally. Further, the judgment directed that ownership and distribution be determined in succession proceedings to the Applicant's exclusion, creating a real risk the property could be distributed before the appeal is determined, making restoration of the status quo difficult.

p. 19
03

Security for due performance of the decree

Holding

The Applicant's offer to abide by the court's directions on security, though no specific form was proposed, was sufficient

Reasoning

Relying on Focin Motorcycle C. Ltd v Ann Wambui Wangui, the court held that it is sufficient for an applicant to state readiness to provide security or propose a kind of security, it being for the court's discretion to determine the security. The Applicant had intimated willingness to abide by the court's direction on security, satisfying this ground.

p. 20

Legal principles established

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  • The three conditions for granting stay of execution pending appeal under Order 42 Rule 6 are conjunctive and must be met simultaneously
  • Typed proceedings are not a prerequisite to filing an application for stay of execution under Order 42 Rule 6

Court orders

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  1. 1.The application dated 11th November, 2024 is dismissed
  2. 2.Costs of the application are awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1A
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Environment and Land Court ActSection 3
  • Law of Succession ActSection 82(b)

Cases cited (14)

  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Butt vs. Rent Restriction Tribunal
    [1979] eKLR; [1982] KLR 417
  • HGE vs SM
    [2020] eKLR
  • Francis K Chabari & Another vs Mwarania Gaichura Kairubi
    [2022] eKLR
  • Muthini vs Ngando
    [2026] KEHC 771 (KLR)
  • Vishram Ravji Halai vs. Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365
  • Antoine Ndiaye vs. African Virtual University
    [2015] eKLR
  • Jaber Mohsen Ali & Another vs Priscillah Boit & another
    [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&LC 919 of 2012
  • Rhoda Mukuma vs John Abuoga
    [1988] eKLR
  • Century Oil Trading Company Ltd vs Kenya Shell Limited (as cited in Muri Mwaniki & Wamiti Advocates Vs Wings Engineering Services Limited)
    [2020] eKLR
  • Kenya Shell Limited vs Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Arun C Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others
    [2014] eKLR
  • Focin Motorcycle C. Ltd vs Ann Wambui Wangui
    [2018] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

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, "Thiong'o (Suing in her capacity as the administrator of the Estate of the Late Dedan Thiong'o Kingangi - Deceased) v Thube (Environment and Land Case 1186 of 2015) [2026] KEELC 3429 (KLR)", Case Analysis (2026). ELC NO. 1186 OF 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3429/eng@2026-06-05

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