Imiet Supa Investments Limited (Formerly Goshen Ventures Limited) v Burton, Gichuke & Mbogo (Being Sued as the Personal Representatives of the Late Burton Mbogo Mwai alias Mbogo Mwai) & another (Environment and Land Case E027 of 2024) (Environment and Land) [2026] KEELC 3596 (KLR)
The bottom line
#A Kenyan court refused to stop a land judgment because declaratory orders can't be stayed, but paused cost collection pending appeal on a Ksh 500,000 security deposit.
What this practically means
#Executive summary
#Key legal issues
#Whether citing the wrong enabling provision (Order 40 instead of Order 42 Rule 6) is fatal to a stay application
Not fatal. Following the Supreme Court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, procedural provisions are not cast in stone and the court must favour substantive justice where no prejudice is suffered.
The court balanced procedural technicality against the constitutional mandate to administer substantive justice without undue regard to technicalities. Relying on the binding Supreme Court decision in Steyn, it held the mis-citation of Order 40 (injunctions) instead of Order 42 Rule 6 (stays pending appeal) did not defeat the application because the respondents clearly understood the relief sought, suffered no prejudice, and responded to the specific demands in their replying affidavits and grounds of opposition.
Whether the orders in the judgment of 9th October 2025 were positive or negative in nature and thus capable of being stayed
The judgment was negative in nature: the declaratory order was self-executing and incapable of being stayed; the directive to the Land Registrar had been executed upon lapse of the 30 days; only the order on costs created a positive, stayable obligation.
Applying Western College of Arts and Applied Sciences v Oronga, the court analysed each of the three orders. Order (i) declared a historical and legal fact and was self-executing on delivery. Order (ii) was a positive directive to the Land Registrar capable of being stayed before the 30 days expired, but the deadline lapsed on 9th November 2025 and the Registrar complied, converting it into an executed act. Order (iii), the award of costs, created a positive financial obligation that can be stayed.
Whether there should be a stay of the taxation of the Plaintiff's Bill of Costs
Taxation may proceed, but issuance of the Certificate of Costs and any subsequent execution processes are stayed pending the intended appeal, on condition that the Applicant deposits Ksh 500,000/= as security for costs within 30 days.
The court outlined the objection mechanism under paragraphs 11 and 12 of the Advocates (Remuneration) Order, and relied on Otieno Ragot & Company Advocates v Kenya Airports Authority (citing Sharma v Uhuru Highway Development Ltd) and Bernard Gichobi Njira v Kanini Njira Kathendu & Another, where the Court of Appeal held costs are repayable by refund and thus nothing irreversible. The court adopted that reasoning and granted a partial stay limited to post-taxation execution, secured by a monetary deposit to protect the Plaintiff.
Legal principles established
#- Failure to cite the correct enabling provision is not fatal where no prejudice is suffered and the overriding objective of substantive justice applies
- A purely declaratory order cannot be stayed because there is no positive enforcement process to halt
- Costs awarded in a judgment, being repayable by refund, do not constitute irreversible substantial loss and stay of execution in respect of costs may be premature or restricted
Court orders
#- 1.The Plaintiff's Party and Party Bill of Costs dated 24th November 2025 shall proceed to formal taxation before the Taxing Officer
- 2.Upon completion of the taxation, the issuance of the Certificate of Costs and any subsequent execution processes are stayed pending the hearing and determination of the intended Appeal at the Court of Appeal
- 3.The Applicant shall deposit a sum of Ksh 500,000/= as security for costs in court within thirty (30) days, failing which the stay order shall automatically lapse
- 4.The Applicant's application for a stay of execution of the Judgement and resultant Decree dated 9th October 2025 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1, 2 and Order 52 of the Civil Procedure Rules (stay sought under Order 42 Rule 6)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Imiet Supa Investments Limited (Formerly Goshen Ventures Limited) v Burton, Gichuke & Mbogo (Being Sued as the Personal Representatives of the Late Burton Mbogo Mwai alias Mbogo Mwai) & another (Environment and Land Case E027 of 2024) (Environment and Land) [2026] KEELC 3596 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3596/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.