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ELCDismissedNot stated in the judgment (Ruling on Notice of Motion dated 26/05/2025)

Gakuya v Gatuiku (Environment and Land Appeal E028 of 2023) [2026] KEELC 3773 (KLR)

High Court of Kenya (Environment and Land jurisdiction inferred from subject matter), Thika
16 June 2026
2,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court dismissed a landowner's bid to pause enforcement of a judgment because he proved no loss, filed no appeal grounds, and offered no security.

What this practically means

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Executive summary

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This Ruling by Mogeni J at Thika disposes of a Notice of Motion dated 26/05/2025 by Harrison Muhia Gakuya, the Appellant/Applicant, seeking a stay of execution of a Judgment delivered on 20/05/2025 pending an intended appeal to the Court of Appeal, brought under Order 22 Rule 22, Order 51 Rules 1 and 13(2) of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The Applicant deposed that he had filed a Notice of Appeal and that, unless stayed, the Respondent might register the parcel known as LR Block 5 (Kiamumbi) 528, rendering the appeal nugatory. The Respondent opposed, asserting the Applicant had never been in occupation of the property, having sold it to him; that no Memorandum of Appeal existed; and that no security had been offered. The Court framed a single issue: whether the Applicant met the conjunctive conditions of Order 42 Rule 6. Relying on Butt v Rent Restriction Tribunal, Trust Bank v Investech Bank, Maboko Distributors v Njahira, RWW v EKW and National Industrial Credit Bank v Wasike, the Court found substantial loss undemonstrated (the Applicant having parted with possession by voluntary sale), satisfied only the no-delay limb (judgment 20/05/2025, motion 27/05/2025), found the absence of a Memorandum of Appeal left nothing to assess the appeal's prospects, and held the complete silence on security a substantive failure. The application was dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Appellant/Applicant has satisfied the threshold set under Order 42 Rule 6 of the Civil Procedure Rules so as to warrant the grant of a stay of execution of the Judgment delivered on 20/05/2025, pending the lodging and hearing of an intended Appeal at the Court of Appeal

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

No substantial loss was demonstrated; the Applicant was never in occupation, having himself sold the property to the Respondent, and did not controvert that averment

Reasoning

The Respondent swore that the Applicant had at no material time been in occupation of the suit property, having sold it to the Respondent. The Applicant did not controvert this averment nor place material before the Court demonstrating loss over and above the ordinary consequences of an adverse Judgment. The apprehension of nugatory action must rest on demonstrated facts, not conjecture.

p. 3
02

Whether the application was made without unreasonable delay

Holding

Judgment was delivered on 20/05/2025 and the application was sworn on 27/05/2025, so this limb was satisfied

Reasoning

The Court found that on the face of it the application was brought without unreasonable delay and was satisfied on this limb alone. This was the only one of the three conjunctive conditions the Applicant met.

p. 3
03

Whether failure to exhibit a Memorandum of Appeal was fatal

Holding

While a Memorandum of Appeal is not invariably required, the Applicant here exhibited only the face of the Notice of Appeal and articulated no grounds, leaving the Court with nothing to assess the prospects of the intended Appeal

Reasoning

A Notice of Appeal signals intention to appeal; a Memorandum articulates the grounds. The Court must be able to satisfy itself that the intended appeal raises substantive questions. With no Memorandum and no grounds articulated even in the Supporting Affidavit, the Court could not assess the seriousness of the challenge to the judgment.

p. 4
04

Whether the Applicant furnished or offered security

Holding

The Applicant was entirely silent on security; this was a substantive failure weighing decisively against the grant of a stay

Reasoning

Neither the Notice of Motion nor the Supporting Affidavit addressed security and no offer was made. Relying on RWW v EKW, the Court held that the requirement to furnish security is not within the Applicant's unfettered discretion to ignore, and an application silent on security is materially deficient.

p. 4

Legal principles established

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  • The three conditions for a stay of execution under Order 42 Rule 6 are conjunctive, not disjunctive
  • An applicant who has voluntarily sold and parted with possession of the suit property cannot demonstrate substantial loss from execution
  • Silence on the requirement of security is a substantive, not technical, failure in a stay application

Court orders

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  1. 1.The Notice of Motion dated 26/05/2025 is hereby dismissed
  2. 2.Costs of the Application are awarded to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6, Order 22 Rule 22 and Order 51 Rules 1 and 13(2) of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21)

Relief refused

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Stay of execution of the Judgment delivered on 20/05/2025 pending filing of an Appeal at the Court of Appeal

The Applicant failed to satisfy the conjunctive conditions under Order 42 Rule 6: no substantial loss demonstrated, no Memorandum of Appeal exhibited, and no offer of security for the due performance of the Decree

p. 4

Costs

Costs of the Application are awarded to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

These three conditions are conjunctive, not disjunctive, and an Applicant who fails to satisfy any one of them is not entitled to the relief sought.
p. 2Conjunctive conditions for stay under Order 42 Rule 6
the apprehension of nugatory action must be grounded in demonstrated facts and not mere conjecture.
p. 3Nugatory-appeal test requires demonstrated facts
a successful litigant has a prima facie right to the fruits of their Judgment and that this right ought not to be lightly interfered with.
p. 4Rights of a decree-holder
i. The Notice of Motion dated 26/05/2025 is hereby dismissed. ii. Cost of the Application are awarded to the Respondent
p. 4Final orders / disposition

Issues in the judgment

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material

Delivery date anomaly: the Ruling is stated to have been delivered on 16th June 2026, yet the application was filed in May 2025 and a court appearance is recorded on 22/01/2026; the year 2026 may be an error for 2025

minor

Applicant's supporting affidavit is described as sworn on 27/05/2025 while the Notice of Motion it supports is dated 26/05/2025 (the application also refers to an affidavit sworn on 27/05/2025)

minor

The coram lists the Respondent as absent while paragraph 8 records counsel (Ms Thuo for Mr Kimani) appearing for the Respondent on 22/01/2026

material

The judgment does not identify the court, case number, or the name of the Respondent; the Appellant is described as appealing a judgment of 'the Honourable Court' delivered on 20/05/2025 without stating which court delivered it

minor

Stray typographical mark in paragraph 8 ('22/01/20267')

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, "Gakuya v Gatuiku (Environment and Land Appeal E028 of 2023) [2026] KEELC 3773 (KLR)", Case Analysis (2026). Not stated in the judgment (Ruling on Notice of Motion dated 26/05/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3773/eng@2026-06-16

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