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ELCDismissedNotice of Motion dated 7/5/2026 (ruling in Civil Appeal No. E094 of 2023 proceedings)· [2026] KEELC 4581 (KLR)

Maru v Wafula (Environment and Land Miscellaneous Case 103 of 2008) [2026] KEELC 4581 (KLR)

Environment and Land Court
10 July 2026
1,493 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Kitale Environment and Land Court refused to pause execution of its land ruling because the applicant couldn't show he'd suffer substantial loss, but allowed him to try the Court of Appeal.

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 Kitale by G.M. Gitonga J on the judgment debtor's Notice of Motion dated 7/5/2026, brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Articles 27, 40, 48, 50 and 159 of the Constitution. The applicant sought temporary and pending-appeal stay of execution of the ruling and orders of 29/4/2026, including any eviction, demolition or interference with his possession of the suit land, or alternatively maintenance of status quo, together with costs. The decree holder opposed, arguing the application was res judicata, had been dealt with by this court and the Court of Appeal, and was filed without the leave the applicant had been directed to obtain. The court applied the conditions in Order 42 Rule 6(2). It found no unreasonable delay, since the application was filed days after the ruling, and noted the applicant's undertaking to furnish security. However, it held the applicant failed to demonstrate substantial loss: his appeal against this court's judgment of 16/10/2023 by F. Nyagaka J had been dismissed by the Court of Appeal on 11/10/2024, and leave to appeal to the Supreme Court had been refused on 25/4/2025, giving him ample time to mitigate. The court also held that arguability and nugatory-appeal arguments are not conditions under Order 42 Rule 6. It declined the stay and status quo orders, but granted the applicant leave to seek a stay of the 29/4/2026 orders at the Court of Appeal. No express costs order was made. The judgment debtor appeared in person.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) were satisfied

Holding

Delay was absent and security was offered, but substantial loss was not demonstrated; stay refused

Reasoning

The court applied the three limbs of Order 42 Rule 6(2). The application was filed within days of the ruling and security was undertaken. However, the applicant was already pursuing the matter up the appellate chain — his appeal was dismissed, and leave to appeal to the Supreme Court was refused — so he had time to mitigate and failed to show how substantial loss would result.

p. 3
02

Whether the proper forum for stay pending appeal is this court

Holding

Since the applicant intends to appeal the 29/4/2026 ruling, stay should be sought at the Court of Appeal; leave granted to do so

Reasoning

The court noted the applicant was not seeking stay of a judgment of this court pending appeal before this court; his appellate path lay with the Court of Appeal. The court declined the stay but expressly blessed and permitted the applicant to pursue stay at the Court of Appeal.

p. 3

Legal principles established

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  • A stay of execution under Order 42 Rule 6 is discretionary and must be weighed against the statutory conditions of substantial loss, absence of unreasonable delay, and security
  • Arguability of an appeal and the appeal being rendered nugatory are not conditions contemplated under Order 42 Rule 6 for a first-instance stay application

Court orders

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  1. 1.Declined to grant an order for stay of execution of the ruling of this court dated 29/4/2026 and the consequential orders therefrom
  2. 2.Declined to issue an order for status quo on the suit property pending the intended appeal
  3. 3.Granted the applicant leave to seek a stay of execution of the orders issued on 29/4/2026 at the Court of Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Butt v Rent Restrictions Tribunal
    [1982] KLR 417
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 27, 40, 48, 50 and 159 of the Constitution

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, "Maru v Wafula (Environment and Land Miscellaneous Case 103 of 2008) [2026] KEELC 4581 (KLR)", Case Analysis (2026). Notice of Motion dated 7/5/2026 (ruling in Civil Appeal No. E094 of 2023 proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4581/eng@2026-07-10

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