Nzuki & another v Musyoka (Environment and Land Appeal E043 of 2025) [2026] KEELC 4995 (KLR)
The bottom line
#A Kenyan court refused to pause execution of a judgment because the losing party waited eight months to ask, losing the right to delay.
What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay in applying for stay of execution
The application filed on 21st January 2026, after the 120-day compliance period expiring from the 27th May 2025 judgment, was made after unreasonable delay; the Applicants are guilty of laches
The court held that a litigant ordered to comply within a set period must apply for stay before that period lapses. Continued non-compliance after the given duration violates the judgment, and the court does not condone illegality such as continued occupation beyond the time given. The Applicants gave no reason for not applying within the 120 days, so the delay was unexplained and inexcusable.
Substantial loss and security under Order 42 Rule 6
The Applicants neither explained the delay nor demonstrated substantial loss, and offered no security; the mandatory conditions in Order 42 Rule 6(2) were not satisfied
The court set out the three elements for stay: substantial loss, absence of unreasonable delay, and security for due performance. Citing Kenya Shell Ltd v Kibiru, it stressed that merely stating a sum is 'a lot of money' is insufficient; the applicant must show the loss it would suffer. The Applicants had not stated what irreparable damage they would suffer if execution proceeded, and no security was offered for the decree.
Balancing the parties' interests - preservation of the appeal versus the fruits of judgment
A money/refund decree is not rendered nugatory by execution; the Respondent, as successful litigant, is entitled to the benefits of the judgment
Relying on Reliance Bank v Norlake Investments and Machira v East African Standard (No 2), the court held that stay jurisdiction aims to preserve the subject matter so a successful appellant does not get a paper judgment, but courts must not, in protecting an intending appellant, deprive a successful party of the fruits of judgment. The interests of both parties had to be balanced, and here the balance favoured the Respondent.
Legal principles established
#- Where a party has been given a timeframe within which to comply with a judgment, an application for stay brought only after that timeframe lapses constitutes unreasonable delay unless a good explanation is offered
- Substantial loss is the cornerstone of the jurisdiction to grant a stay pending appeal; without evidence of it, a respondent should not be kept out of their money
- A successful litigant is ordinarily entitled to the fruits of the judgment, and stay applications must balance the interests of both parties
Court orders
#- 1.The application for stay of execution pending appeal dated 21st January 2026 is dismissed
- 2.The Appellants/Applicants shall pay the costs of the application
- On appeal from
- Chief Magistrates Court (MCELC E099 of 2023, Hon. Koech (Mrs) (SPM))
- MCELC E099 of 2023
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts (ELCA E043 of 2025), with the application brought under Order 51 Rule 1, Order 10 Rules 10 & 11 and Order 22 Rule 22 of the Civil Procedure Rules; stay governed by Order 42 Rule 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzuki & another v Musyoka (Environment and Land Appeal E043 of 2025) [2026] KEELC 4995 (KLR)", Case Analysis (2026). ELCLA NO. E043 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4995/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.