Kahawa Sukari Limited v Gatere
The bottom line
#A Kenyan court allowed a late land appeal but only after the company deposited Kshs 2 million as security to stop the other side from enforcing the judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant should be granted leave to file and serve the Memorandum of Appeal out of time under Section 79G of the Civil Procedure Act.
- 2.Whether an order for stay of execution pending the hearing and determination of the Intended Appeal should issue under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010.
Key legal issues
#Extension of time to appeal out of time under Section 79G
Leave granted: the six-month delay was not outright indolence because the Applicant was actively pursuing relief in the Subordinate Court from December 2025 to February 2026, the intended appeal is arguable, and prejudice is compensable in costs.
The Court applied the First American Bank and Leo Sila Mutiso discretion factors. Judgment was delivered 22/08/2025; the 30-day window expired 21/09/2025. The Applicant filed an extension application in the Subordinate Court on 4/12/2025, which was determined 3/02/2026, and filed the present application 20 days later. The draft appeal raises arguable issues on damages quantum (Kshs 8,000,000/= versus Kshs 390,000/=).
Stay of execution pending appeal under Order 42 Rule 6(2)
Conditional stay granted: substantial loss shown given the magnitude of the Decree; delay not unreasonable; and the Applicant's expressed willingness to furnish security satisfied the mandatory requirement, though at a level fixed by the Court.
The Court held that execution of a decree requiring land substitution or monetary compensation of up to Kshs 8,000,000/= before appeal would cause substantial financial exposure and render the appeal academic. The Applicant's willingness to provide security cured the irregularity of the interim stay granted without security; the Court balanced the parties' competing rights by fixing security at Kshs 2,000,000/= with an automatic lapse on default.
Legal principles established
#- Factors for extension of time under Section 79G: explanation for delay, arguability of the intended appeal, and whether the respondent can be compensated in costs.
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal under Order 42 rule 6.
- Security is a mandatory prerequisite and condition precedent to the grant of stay orders.
Court orders
#- 1.Leave granted to the Applicant to lodge and serve the Memorandum of Appeal out of time within fourteen (14) days from the date of the Ruling.
- 2.Upon lodging and payment of requisite Court fees within the fourteen days, the Memorandum of Appeal deemed properly filed and served.
- 3.Stay of execution of the Judgment delivered on 22/08/2025 in Ruiru MCELC No. 6 of 2022 granted pending the hearing and determination of the intended Appeal.
- 4.Stay conditional upon the Applicant depositing Kshs 2,000,000/= into a joint interest-earning bank account in the names of both Advocates, OR providing a bank guarantee of the equivalent sum from a reputable commercial bank, within thirty (30) days.
- 5.In default of compliance, the stay shall automatically lapse and the Respondent shall be at liberty to proceed with execution.
- 6.Costs of the application shall be in the cause.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Ruiru
- MCL & E Cause Number E006 of 2022
- Jurisdiction invoked
- Sections 1A, 1B, 79G and 95 of the Civil Procedure Act; Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Applicant's prayer to cap security at Kshs 390,000/= (the original purchase price) rather than the decree sum
Unreasonable given the actual exposure under the Decree of Kshs 8,000,000/=; the Court instead fixed security at Kshs 2,000,000/=
Costs
Costs of this application shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Leave is hereby granted to the Applicant to lodge and serve the Memorandum of Appeal out of time within fourteen (14) days from the date of this Ruling.
An order of stay of execution of the Judgment delivered on 22/08/2025 in Ruiru MCELC No. 6 of 2022 is hereby granted pending the hearing and determination of the intended Appeal, subject to Condition iv below.
In default of compliance with Condition (iv) within the specified timeline, the order of stay of execution shall automatically lapse, and the Respondent shall be at liberty to proceed with execution.
Costs of this application shall be in the cause.
While a total period of six months elapsed between the Judgment and the present application, the Applicant was actively seeking relief in the Subordinate Court from December 2025 until February 2026.
Issues in the judgment
#Decree amount stated inconsistently as Kshs 3,900,000.00 and Kshs 390,000/=
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahawa Sukari Limited v Gatere", Case Analysis (2026). Environment and Land Miscellaneous Case E013 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5700/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.