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ELCDismissedELCLA No. E066 of 2025· [2026] KEELC 5768 (KLR)

Rufas Kihara Njoroge & Moureen Mugure Kihara (Suing as the Legal Representatives of Hellen Wanjiku Gathungu) v Naomi Wairimu Kamau, Jufras Investment Limited, Land Registrar Ruiru & The Hon. Attorney General

Environment and Land Court at Thika
23 September 2026
JOJ. M. Onyango
3,500 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a land judgment on appeal, confirming that appealing alone does not stop the winner from enforcing their decree.

What this practically means

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Executive summary

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The Applicants, legal representatives of the estate of Hellen Wanjiku Gathungu, moved the Environment and Land Court at Thika by Notice of Motion dated 6 September 2025 seeking stay of execution of the judgment and decree of the Chief Magistrate's Court at Ruiru (Hon. Christine Asuna Okello) in MCELC E075 of 2023 delivered on 16 May 2025, which issued a permanent injunction against them, ordered removal of structures and restoration of the suit property within 60 days, and dismissed their counterclaim. They argued they had occupied and developed the property since 2015, paid Kshs. 1,000,000 to the 2nd Respondent, and that the trial court erred in disregarding their documentary evidence. The 1st Respondent opposed, contending she was the registered proprietor already in possession, the application was overtaken by events, filed after about four months' delay without explanation, and that no substantial loss, arguable appeal or security had been demonstrated. Applying Order 42 Rule 6 and the Butt v Rent Restriction Tribunal principles, the court held the three statutory conditions are conjunctive; that mere execution of a lawful decree is not substantial loss; that the Applicants showed no irreversible prejudice; that the delay, though accepted as not unreasonable, could not cure the other failures; and that no security had been offered. The court declined to re-evaluate the trial evidence, finding those complaints belonged to the appeal. The application was dismissed with costs.

Key legal issues

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01

Substantial loss

Holding

Not established; the decree was injunctive and restorative, and the Applicants showed no irreversible prejudice

Reasoning

The court held that execution of a lawful decree does not amount to substantial loss. The Applicants had to show particular prejudice that could not be remedied if the appeal succeeded. Alleged payments and developments were contested matters for the appeal, and the 1st Respondent claimed she was already in possession, rendering the application partly overtaken by events.

p. 14
02

Unreasonable delay

Holding

Delay of about four months accepted as not unreasonable in the circumstances

Reasoning

Judgment was delivered on 16 May 2025 and the application filed on 6 September 2025, a period of approximately four months. Although not filed immediately, the court was prepared to accept the delay had not been shown to be unreasonable on the facts disclosed.

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Security for due performance of the decree

Holding

No security offered; however, the injunctive nature of the decree did not dispense with the requirement of substantial loss

Reasoning

Order 42 Rule 6(2)(b) requires security, and none was offered. The court noted the decree imposed no specific monetary obligation, but held that this did not by itself dispense with the statutory requirements of substantial loss and sufficient cause, which the Applicants had failed to establish.

p. 15

Legal principles established

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  • The three conditions for stay of execution pending appeal - substantial loss, timely filing and security - must all be satisfied before the discretionary jurisdiction is exercised
  • Mere prospect of execution of a lawful decree, including an order for possession, does not of itself establish substantial loss
  • An interlocutory stay application is not an occasion to re-evaluate the evidence or determine the merits of the appeal

Court orders

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  1. 1.The Notice of Motion dated 6 September 2025 is dismissed with costs
On appeal from
Chief Magistrate's Court at Ruiru
MCELC E075 of 2023
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Rufas Kihara Njoroge & Moureen Mugure Kihara (Suing as the Legal Representatives of Hellen Wanjiku Gathungu) v Naomi Wairimu Kamau, Jufras Investment Limited, Land Registrar Ruiru & The Hon. Attorney General", Case Analysis (2026). ELCLA No. E066 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5768/eng@2026-09-23

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