Githu v Koigi (Suing as the legal representative of the Estate of Paulina Wanjiku Wabacha - Deceased) (Environment and Land Appeal E045 of 2023) [2025] KEELC 50 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's bid to stop his eviction because he offered no security and tied his request to an unrelated succession case.
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 application satisfies the criteria for granting an order of stay of execution by a first appellate court pending the disposal of an appeal before it
- 2.Whether the application satisfies the criteria for granting an interlocutory injunction by a first appellate court pending the disposal of an appeal before it
Key legal issues
#Competence of the stay application
The stay application was incompetent because it was pegged on a succession cause in which no appeal is pending before this court.
The applicant sought stay pending the hearing of Thika P&A 580 of 2014, a succession cause before a different court. The ELC, exercising first appellate jurisdiction, has no appeal before it from that succession court and thus no platform to exercise the invited appellate jurisdiction. The court nonetheless went on to examine the merits of the plea.
Security for due performance of the decree
The applicant failed the security requirement under Order 42 rule 6(2) and so failed to establish entitlement to stay.
Under Order 42 rule 6(2), stay requires substantial loss, absence of unreasonable delay and security for due performance of the decree. Although there was no inordinate delay and some evidence of development on the land, the applicant tendered no evidence of, and proposed no, suitable security despite having been adjudged to have no right to remain on the land. The court therefore had no evidential material to exercise its discretion in his favour.
Interlocutory injunction pending appeal
The application failed to justify grant of an interlocutory injunction by a first appellate court.
The applicant's supporting affidavit and written submissions did not address the criteria for granting an interlocutory injunction by a first appellate court. Without such justification the court had no basis to exercise the jurisdiction sought, and the prayer for injunction necessarily failed.
Legal principles established
#- A first appellate court cannot entertain an interlocutory application pegged on proceedings in a court from which no appeal is before it.
- An applicant for stay of execution must propose and offer security for due performance of the decree; the burden of doing so lies on the applicant.
Court orders
#- 1.The amended notice of motion dated 4th December 2023 is rejected and dismissed
- 2.The applicant shall bear costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Thika MCELC)
- Thika MCELC 94 of 2020
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court under Order 42 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment, decree and consequential orders in Thika MCELC 94 of 2020
The stay was pegged on Thika P&A 580 of 2014, a succession cause from which this court has no appeal; and the applicant offered no security for due performance of the decree
Temporary injunction restraining eviction from Ruiru Mugutha 4048 and 4049 pending appeal
Neither the applicant's affidavit nor submissions addressed the criteria for an interlocutory injunction by a first appellate court
Costs
The applicant shall bear costs of the application.
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.
This first appellate court is not seized of any appeal from the said succession court. The court does not have a platform on which to exercise the appellate jurisdiction that it has been invited to exercise.
He wants the court to ignore the statutory requirements and grant him an order of stay of execution without him proposing or offering any form of security. That is not the way the court is expected to exercise the above jurisdiction.
In light of the above findings, the amended notice of motion dated 4th December 2023 is rejected and dismissed. The applicant shall bear costs of the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githu v Koigi (Suing as the legal representative of the Estate of Paulina Wanjiku Wabacha - Deceased) (Environment and Land Appeal E045 of 2023) [2025] KEELC 50 (KLR)", Case Analysis (2025). ELC Appeal Case E019 of 2023 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/50/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.