Intex Construction Limited v Suppliers & Services Limited & 3 others (Consolidated with ELC 691 of 2012 and ELC 598 of 2013; Charles Wambugu Gitonga v Supplies and Services Limited)
The bottom line
#A Kenyan landowner lost his bid to pause a judgment cancelling his title because he waited over four months, proved no real harm, and offered no security.
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 2nd Defendant/Applicant has satisfactorily demonstrated the conditions warranting the grant of stay of execution pending appeal
Key legal issues
#Whether the application was made without unreasonable delay
The motion was filed more than four months after judgment with no explanation, constituting unreasonable and inordinate delay
Judgment was delivered on 20th February 2025 and a notice of appeal filed the next day, but the motion dated 16th May 2025 was not filed until 3rd July 2025. The applicant offered no explanation for the delay. Citing Jaber Mohsen Ali v Priscillah Boit, even a one-day delay may be unreasonable depending on circumstances.
Whether substantial loss was demonstrated
Cancellation of title and registration in the plaintiff's name are direct consequences of the judgment and do not constitute substantial loss; the alleged risk of disposal was speculative
Relying on Century Oil Trading v Kenya Shell, substantial loss must mean something beyond the ordinary loss every judgment debtor suffers. The applicant produced no evidence that the plaintiff intended to dispose of or encumber the property; the apprehension was speculative and would not render the appeal nugatory.
Whether security for due performance of the decree was offered
The applicant neither offered security nor expressed willingness to furnish such security as the court may order, failing the third requirement
The purpose of security under Order 42 is to guarantee due performance of the decree ultimately binding on the applicant. Although sufficiency of security falls within the court's discretion, an applicant must show readiness to comply with any terms imposed, which the 2nd Defendant failed to do.
Correct legal basis for stay of execution pending appeal
Order 22 Rule 1 cited in the motion is erroneous; the correct provision is Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010
The court noted the motion was premised on Order 22 Rule 1, which concerns modes of paying money under a decree, and corrected the position by identifying Order 42 Rule 6(1) and (2) as the law governing stay of execution pending appeal, setting out the three conditions therein.
Legal principles established
#- The direct consequences of a judgment, such as cancellation of title and registration of property in the judgment creditor's name, do not without more constitute substantial loss for stay of execution
- An applicant for stay must demonstrate readiness to furnish security as the court may order for due performance of the decree
Court orders
#- 1.The Notice of Motion dated 16th May 2025 seeking stay of execution of judgment and decree pending appeal is dismissed
- 2.Costs of the application awarded to the Plaintiff in ELC 1085 of 2013/Decree Holder
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules, 2010; Section 3 of the Environment and Land Court Act
- Consolidated with
- ELC 691 of 2012, ELC No 598 of 2013
Relief refused
#Stay of execution of judgment and decree pending hearing and determination of the appeal
Applicant failed to meet the mandatory conditions under Order 42 Rule 6(2): unreasonable delay, no demonstrated substantial loss, and no security offered
Costs
Application dismissed with costs to the Plaintiff in ELC 1085 of 2013/Decree Holder
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.
Ultimately, the court finds that the 2 nd Defendant has not met the mandatory conditions prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules. The present Motion is consequently dismissed, with costs to the Plaintiff in ELC 1085 of 2013/Decree Holder.
the cancellation of the 2 nd Defendant's title and registration of the property in the Plaintiff's name are the direct consequences of the judgment and do not, without more, constitute substantial loss
In the circumstances, the court finds that the motion was filed after unreasonable and inordinate delay.
Beyond expressing apprehension, the 2 nd Defendant has not placed before the court any evidence demonstrating that the Plaintiff intends to dispose of or encumber the property.
Issues in the judgment
#Conflicting filing dates for the motion: court finds 3rd July 2025, plaintiff's grounds state 29th October 2025
Grounds of opposition dated 7th July 2026, yet the ruling records no submissions as at 17th August 2026 and is dated 1st October 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Intex Construction Limited v Suppliers & Services Limited & 3 others (Consolidated with ELC 691 of 2012 and ELC 598 of 2013; Charles Wambugu Gitonga v Supplies and Services Limited)", Case Analysis (2026). ELC Case No 1085 of 2013 (consolidated with ELC 691 of 2012 and ELC No 598 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6075/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.