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ELCDismissedELCLA E019 OF 2026

Ndungu & another v Nyairo (Environment and Land Appeal E019 of 2026) [2026] KEELC 5233 (KLR)

Environment and Land Court
6 August 2026
1,273 words in judgment
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The bottom line

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A Kenyan court refused to pause execution of a judgment because the applicant showed no real loss and offered no security.

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 Nairobi (Mohammed N. Kullow, J) on a notice of motion dated February 2026 by Esther Wambui Ndungu, seeking a stay of execution of the judgment and decree in MCELC E190 OF 2025 (consolidated with six other suits) delivered in January 2026, pending appeal. The applicant argued through counsel that the appeal raised arguable grounds, including the trial court's jurisdiction, the dismissal of her defence and counterclaim, and the grant of a permanent injunction against an estate administrator. She contended substantial loss through interference with the estate's administration, filed without undue delay, and relied on Sewankambo Dickson v Ziwa Abby. The respondent did not respond, and the application was canvassed by written submissions. The court framed a single issue: whether the stay application was merited under Order 42 Rule 6 of the Civil Procedure Rules. Applying Kenya Shell v Kibiru, the court held substantial loss is the cornerstone of a stay application; it found the loss alleged related to the estate whereas the suit concerned the appellants individually for an unlawful distress for rent, and no substantial loss was established. It noted a successful party is entitled to the fruits of judgment (Machira v East African Standard) and that security under Order 42 Rule 6(2)(b) is mandatory (Focin Motorcycle v Ann Wambui Wangui), but none was offered. Since the three conditions are conjunctive, the application failed despite timely filing. The motion was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the application for grant of stay of execution pending appeal is merited

Key legal issues

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01

Whether the applicant established substantial loss

Holding

No substantial loss established; the injunction was to rectify the unlawful distress for rent carried out by the appellants in their individual capacity

Reasoning

The court noted that the appellants argued the estate would suffer loss, yet the suit concerned the appellants individually for an unlawful distress for rent. The injunctive orders were meant to prevent disposal of goods taken from the respondent. Execution of a lawful decree does not amount to substantial loss.

p. 4
02

Whether the application was made without undue delay

Holding

Filed timely - judgment delivered 26th January 2026, application filed 12th February 2026

Reasoning

The court found the application was filed timeously, satisfying the delay limb, but this alone was insufficient as all conditions must be met conjunctively.

p. 5
03

Whether security for due performance of the decree was furnished

Holding

No security offered; Order 42 Rule 6(2)(b) is mandatory

Reasoning

Security under Order 42 Rule 6(2)(b) is couched in mandatory terms and guarantees due performance of the decree. The applicant offered none, failing a conjunctive condition.

p. 6

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal
  • Execution of a lawful decree does not automatically amount to substantial loss; a successful litigant is entitled to the fruits of his judgment
  • The three conditions for granting stay of execution pending appeal are conjunctive, not disjunctive

Court orders

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  1. 1.The Notice of Motion application dated 12th February 2026 is dismissed for lack of merit
  2. 2.No order as to costs

The bench

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

Wrote the judgment

On appeal from
Magistrates' Court (ELC division)
MCELC E190 OF 2025
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (appeal from subordinate court under the Magistrates' Court Act jurisdiction of the ELC)
Consolidated with
MCELC E190 OF 2025 consolidated with MCELC E188, E450, E451, E452, E456, E457, E489 all of 2025

Relief refused

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Stay of execution of the judgment and decree in MCELC E190 OF 2025 pending appeal

Applicants failed to demonstrate substantial loss and failed to furnish security; the three conditions are conjunctive

p. 6

Costs

No order as to costs.

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.

The three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive.
p. 6conjunctive conditions for stay
Substantial loss is the cornerstone of an application for stay.
p. 3substantial loss
A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause.
p. 5fruits of judgment
The Notice of Motion application dated 12th February 2026 lacks merit is hereby dismissed.
p. 6final orders
No order as to costs.
p. 6costs

Issues in the judgment

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minor

The introductory paragraph dates the application 11th February 2026 while the final orders dismiss an application dated 12th February 2026

minor

Judgment date of 28th January 2026 is given in the application but the ruling states judgment was delivered on 26th January 2026

minor

Dated, signed and delivered on 6th August 2026, several months after the events of February 2026

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, "Ndungu & another v Nyairo (Environment and Land Appeal E019 of 2026) [2026] KEELC 5233 (KLR)", Case Analysis (2026). ELCLA E019 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5233/eng@2026-08-06

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