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ELCPartially AllowedThika ELCA E126 of 2025· [2026] KEELC 5242 (KLR)
Mbugua & another (Suing as the Administrators of the Estate of Josiah Mwai Muya) v Mwai & 2 others (Environment and Land Civil Appeal E126 of 2025) [2026] KEELC 5242 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Appellants, who lost their suit over L.R No. Githunguri/Githunguri/T776 before the Githunguri Magistrates' Court (Peter Muholi SPM, judgment of 12th September 2025) and were ordered to vacate, moved the Environment and Land Court by Notice of Motion dated 21st October 2025 seeking stay of execution pending appeal. They argued the appeal had overwhelming chances of success and that execution, including eviction and demolition of structures, would render it nugatory. The Respondents opposed through the Replying Affidavit of Josiah Wandiba Mwai, contending the application merely sought to forestall eviction and disclosed no substantial loss. Canvassed by written submissions, the sole issue was whether the requirements for stay under Order 42 Rule 6 were met. Applying Order 42 Rule 6(1) and (2) and the decision in Butt v Rent Restriction Tribunal, the Court held that eviction alone is not necessarily substantial loss, but here execution would extend to demolition of structures which could not be re-erected by a favourable appellate judgment, altering the subject matter of the appeal. Substantial loss under Rule 6(2)(a) was therefore demonstrated. The Appellants' failure to offer security was not fatal, the Court being empowered to fix security. The Court granted the stay pending appeal on condition that the Appellants deposit Kshs. 200,000/- in an interest-earning joint account in the names of counsel within 30 days, failing which the stay stands discharged automatically. Costs of the application were ordered to abide the outcome of the appeal.
Key legal issues
#01
Whether the Appellants satisfied the requirements for stay of execution under Order 42 Rule 6(2)
Holding
Substantial loss was demonstrated because execution would extend to demolition of structures, rendering a successful appeal nugatory; the application was made without unreasonable delay; and the Court itself set security.
Reasoning
The Court applied Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. It held that eviction alone may not constitute substantial loss, but here execution would demolish structures which could not be restored by a later appellate judgment, altering the subject matter of the appeal. On security, the Court held the applicant's omission to offer security is not fatal, the Court being empowered to fix it. It balanced the right of appeal against the respondents' enjoyment of the judgment and fixed security at Kshs. 200,000/-.
p. 7
Legal principles established
#- A judgment is not suspended merely because an appeal has been lodged; the successful party remains entitled to the fruits of the judgment unless the conditions for stay are met.
- Eviction without more does not necessarily amount to substantial loss; but execution extending to demolition of structures alters the subject matter of the appeal in a manner that may not readily be undone.
- The applicant's failure to offer security is not fatal; the Court determines the nature and quantum of security.
Court orders
#- 1.Stay of execution of the judgment delivered on 12th September 2025 in Githunguri CMCC 89 of 2019 pending the hearing and determination of the appeal
- 2.Appellants to deposit Kshs. 200,000/- in an interest-earning joint account in the names of counsel for the parties within thirty (30) days of the ruling
- 3.In default of the deposit, the order of stay shall stand discharged without the necessity of any further order
- 4.Costs of the application to abide the outcome of the appeal
- On appeal from
- Magistrates' Court at Githunguri
- Githunguri CMCC 89 of 2019
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, on appeal to the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua & another (Suing as the Administrators of the Estate of Josiah Mwai Muya) v Mwai & 2 others (Environment and Land Civil Appeal E126 of 2025) [2026] KEELC 5242 (KLR)", Case Analysis (2026). Thika ELCA E126 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5242/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.