Kaberia v Kirathi & another (Environment and Land Appeal E059 of 2026) [2026] KEELC 5964 (KLR) (24 September 2026) (Ruling) Neutral citation: [2026] KEELC 5964 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU ENVIRONMENT AND LAND APPEAL E059 OF 2026 BM EBOSO, J SEPTEMBER 24, 2026 BETWEEN TIRISIA MUTHAICU KABERIA .......................................................... APPELLANT AND GEDION GITONGA KIRATHI ................................................... 1ST RESPONDENT JOSHUA MURINGURI MBAABU .............................................. 2ND RESPONDENT RULING 1. This appeal challenges the Judgment of the Senior Resident Magistrate Court at Maua, rendered on 13/5/2026 in Maua CMC E & L Case No 225 of 2019. Through the impugned Judgment, the trial court dismissed the appellant’s primary suit and allowed the 2nd respondent’s counterclaim. The trial court decreed the appellant to vacate land parcel number Njia/Kiegoi/943 within 90 days. In default, eviction was to ensue. 2. Upon ling the memorandum of appeal, the appellant brought a notice of motion dated 9/6/2026, through which he sought an order staying execution of the said Judgment, pending the hearing and determination of the appeal. The said application is the subject of this ruling. 3. The application was premised on the grounds set out in the motion and in the appellant’s supporting adavit dated 9/6/2026. It was canvassed through written submissions dated 16/7/2026, led by M/ s Mutuma Gicheru & Associates. 4. The case of the appellant/applicant is that, the trial court decreed her eviction from the suit land upon expiry of 90 days. Dissatised with the judgment of the trial court, she brought this appeal. She is apprehensive that the 90-day time-line will lapse before the appeal is heard and determined, rendering her appeal nugatory and exposing her to eviction. It is her case that she has heavily invested on the suit land through planting miraa and various types of trees, and by constructing a semi-permanent house thereon. She contends that she will suer substantial loss if she is evicted from the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5964/eng@2026-09-24 1
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5. The 2nd respondent opposed the application through a replying adavit dated 24/6/2026 and written submissions dated 21/7/2026, led through Kithinji & Gicheru Advocates. The case of the 2nd respondent is that the applicant has failed to satisfy the mandatory requirements under Order 42 rule 6(2) of the Civil Procedure Rules. He argues that the application is a delay tactic employed by the applicant to prevent him from enjoying the fruits of the Judgment of the Lower Court. He adds that the application was brought in bad faith. The respondent further contends that the applicant has neither demonstrated elements of substantial loss nor demonstrated that the appeal will be rendered nugatory. He urges the court to reject the application. 6. The court has considered the application, the response to the application, and the parties’ respective submissions. The question that falls for determination in the application is whether the criteria for granting an order of stay of execution pending the hearing and disposal of an appeal by this court has been met. 7. The principle that guides the jurisdiction of a rst appellate court to grant an interlocutory order of stay of execution are spelt out in Order 42 rule 6 (2) of the Civil Procedure Rules which provides as follows: “ 42(6) No order for stay of execution shall be made under subrule (1) unless— (2) (2) (a) the court is satised that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”. 8. The Court of Appeal in Butt v Rent Restriction Tribunal summarized the general principles that guide our courts when exercising jurisdiction to grant or decline to grant an order of stay of execution pending appeal. First, the jurisdiction to grant or refuse to grant an application for an order of stay of execution is a discretionary one, and the discretion is to be exercised in such a way as not to obstruct a party who seeks to exercise the right of appeal. Secondly, the general applicable principle is that, if there is no other overwhelming hindrances, a stay should be granted so that an appeal may not be rendered nugatory should the appellate court reverse the impugned decision. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy would become available to the applicant at the end of the proceedings. Lastly, the court seized of the application for stay of execution should consider the special circumstances of the case and its unique requirements. 9. Similarly, the jurisprudential principle upon which the jurisdiction to grant an order of stay is exercised was articulated by the Court of Appeal in the case of Absalom Dova v Tarbo Transporters (2013) e KLR as follows: “ The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse o by virtue of an order of the court, as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5964/eng@2026-09-24 2
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that both parties have rights, the appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benets under the decree. The court in balancing the two competing rights focuses on their reconciliation…..” 10. Put dierently, when exercising jurisdiction to grant an order of stay of execution pending appeal, the court is required to carefully balance the appellant’s right of appeal against the respondent’s right to enjoy the fruits of his judgment. 11. On substantial loss, the applicant is under duty to demonstrate to the court that she stands to suer loss in the event of execution. [See (i) Kenya National Highways Authority v Ahmendnasir Maalim Abdullah [2020] eKLR and (ii) Kenya Shell Ltd v Benjamin Karuya Kibiru (1986) eKLR among other decisions]. 12. In the present application, the appellant contends that she has been in open, continuous and uninterrupted occupation of the suit property for over ten (10) years, during which period she has undertaken extensive developments, including the planting of miraa and various species of trees, and the construction of a semi-permanent house. On his part, the 2nd respondent contends that the developments are mere assertions which have not been proved by pictorial evidence. The respondents add that the alleged loss, if proven, can be compensated by damages. 13. I have considered the rival positions in the context of the relevant principles and guidelines against which the jurisdiction to grant or decline to grant an order of stay of execution is exercised. One of the disposal orders in the impugned judgment required the applicant to deliver vacant possession of land parcel number Njia/Kiegoi/943 within ninety (90) days and in default she was to be evicted. The applicant contends that she has been in quiet possession of the suit land for more than 10 years and she has signicant developments on the suit land. She stands to suer substantial loss if she is evicted and her developments uprooted. Because of the above circumstances, the court is satised that the applicant has demonstrated the likelihood of substantial loss. 14. On security, our courts have, umpteen times, stated that the purpose of security under Order 42 Rule 6(1) is to guarantee the due performance of such decree or order as may ultimately become binding, and have emphasized that it is not intended to punish the judgment debtor. In the application under consideration, the appellant was decreed to vacate the suit land. The appellant has expressed willingness to provide security as may be directed by this court. 15. On ling the application timeously, the impugned judgment was rendered on 13/5/2026. The application was brought on 9/6/2026. In the circumstances, there is no evidence of inordinate delay. 16. Taking into account all the above circumstances, and being cognizant of the fact that grant of an order of stay of execution is an exercise of discretion and the discretion is exercisable on the basis of wellsettled principles, the court comes to the conclusion that this is a matter where conditional stay should be granted. 17. In light of the above ndings, the notice of motion dated 9/6/2026 is allowed in the following terms: a. Subject to the appellant depositing in court Kshs. 200,000 as security within 30 days, there shall be a stay of execution of the judgment and decree in Maua CMC E & L Case No 225 of 2019. b. The above stay order shall lapse upon expiry of 9 months for today. c. Costs of the application shall be in the appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 24TH DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5964/eng@2026-09-24 3
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B M EBOSO [MR] ELC JUDGE In the Presence of: Appellant - Absent Respondent - Absent Mr Tupet - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5964/eng@2026-09-24 4
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