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ELCPartially AllowedELC Appeal (from CMELC NO 9015 of 2018)· [2026] KEELC 3471 (KLR)

Kahiga & another v Kinuthia (Environment and Land Appeal E245 of 2025) [2026] KEELC 3471 (KLR)

Environment and Land Court
4 June 2026
JKJ. G. Kemei
1,571 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused enforcement of a land judgment, but only because the appellants deposited security and committed to filing their appeal quickly.

What this practically means

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Executive summary

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This was an application dated 26/11/25 in an appeal to the Environment and Land Court at Nairobi against a judgment delivered on 23/10/25 in CMELC NO 9015 of 2018, in which the Respondent, Joseph Kinuthia Gatheca, had succeeded and obtained, among other things, a permanent injunction over the suit land. The Applicants sought a stay of execution of that judgment pending appeal and a temporary injunction restraining the Respondent from putting up structures on the suit property, contending the appeal was arguable and would be rendered nugatory, and expressing apprehension that the Respondent would remove foundations or transfer the land. The Respondent opposed, arguing there was no evidence of risk of execution or substantial loss, that the application did not meet Order 42 Rule 6 requirements, and that it was an attempt to hinder enjoyment of the fruits of a judgment arrived at on merits. The court, J. G. Kemei J, framed one key issue: entitlement to stay of execution and/or temporary injunction. Applying Butt v Rent Restriction Tribunal, Kenya Shell, Absalom Dora, Aron C. Sharma and Gikonyo J's guidance in Geofirey Muriungi, the court held the appeal was filed timeously, that substantial loss was demonstrated because the Respondent could remove obstructions or transfer the land before the appeal was heard, and that security was mandatory. The court granted the stay conditioned on the Applicants depositing Kshs 50,000/- as security within 30 days and filing the record of appeal within 60 days, in default of which the orders would lapse. The injunction prayer was refused as moot, and costs of the application were made to abide the appeal.

Key legal issues

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01

Entitlement to stay of execution pending appeal

Holding

Stay granted; appeal filed timeously, substantial loss shown as the decree could render the appeal nugatory, and security ordered

Reasoning

The court applied Order 42 Rule 6 and the Butt v Rent Restriction Tribunal principles. The judgment in favour of the Respondent included a permanent injunction over the suit land; without a stay the Respondent could remove obstructions or transfer the land, changing the state of the property before the appeal was heard. The appeal was filed within time on 18/11/25 after the 23/10/25 judgment. Security of Kshs 50,000/- was imposed as a mandatory condition.

p. 3
02

Temporary injunction restraining the Respondent from constructing on the suit land

Holding

Refused as moot

Reasoning

Having granted the stay of execution, the court found the injunction unnecessary. The stay already preserved the status quo pending appeal, so the injunction would serve no useful purpose and the court declined to determine it.

p. 3

Legal principles established

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  • Stay of execution pending appeal is a discretionary power to be exercised so as not to prevent an appeal from being rendered nugatory
  • The Applicant bears the burden of demonstrating substantial loss if stay is not granted
  • Security under Order 42 Rule 6(2)(b) is mandatory and guarantees due performance of the decree

Court orders

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  1. 1.Stay of execution of the judgment issued on 23/10/25 pending the hearing and determination of the appeal
  2. 2.Applicant to deposit Kshs 50,000/- in Court as security within 30 days
  3. 3.Appellants to file the record of appeal within 60 days; in default of the security and record-of-appeal directions, the orders shall lapse
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2) and 6(2)(b)
  • Civil Procedure RulesOrder XLI Rule 4 / 4(2)(b)

Cases cited (5)

  • Butt –vs- Rent Restriction Tribunal
    {1982} KLR 417
  • Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018
  • Absalom Dora –v- Turbo Transporters
    (2013) eKLR
  • Geofirey Muriungi & another v John Rukunga M'imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased)
    [2016] eKLR
  • Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates & 4 Others
    (2014) Eklr
On appeal from
Magistrates' Court (CMELC)
CMELC NO 9015 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Kahiga & another v Kinuthia (Environment and Land Appeal E245 of 2025) [2026] KEELC 3471 (KLR)", Case Analysis (2026). ELC Appeal (from CMELC NO 9015 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3471/eng@2026-06-04

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