Muthembwa v Nzioka (Environment and Land Appeal E015 of 2024) [2025] KEELC 1125 (KLR)
The bottom line
#A Kenyan landowner lost his bid to freeze enforcement of a court order because he could not show what real loss he would suffer while his appeal is heard.
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 is deserving of the orders sought, namely stay of execution of the decision and orders of the Principal Magistrate's Court in Tawa MCELC No. E007 of 2022 pending the hearing and determination of the intended appeal
Key legal issues
#Whether the Applicant satisfied the conditions in Order 42 Rule 6(2) for stay of execution pending appeal
The application fails because substantial loss was not demonstrated; the Applicant is not in possession of the suit properties, has shown no steps towards disposal by the Respondent, and has offered no security
The court recited the three conditions under Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. It found the Applicant's fears of disposal unsubstantiated, noted the Respondent was already in possession following injunctive orders of 29th November 2022, and observed no decree or evidence of execution was annexed. Since substantial loss is the cornerstone of the jurisdiction and was not proved, the appeal could not be shown to be rendered nugatory.
Legal principles established
#- Mere fact that execution has been put in motion or is likely to be put in motion does not by itself amount to substantial loss under Order 42 Rule 6
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution and must be proved by the applicant
- Security under Order 42 Rule 6 is meant to guarantee due performance of the decree, not to punish the judgment-debtor
Court orders
#- 1.The Notice of Motion dated 30th September, 2024 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Tawa
- Tawa Principal Magistrate's ELC No. E007 of 2022 (Stephen Mwanza Nzioka v Japheth Kasyoki Muthembwa)
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Sections 3 and 13(7) of the Environment and Land Court Act; Order 42 Rule 6(1) and (2) and Order 50 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the decision and orders of the Principal Magistrate's Court in Tawa MCELC No. E007 of 2022 pending the hearing and determination of the intended appeal
The Applicant failed to demonstrate substantial loss under Order 42 Rule 6(2); he is not in occupation of the suit properties, no decree evidencing execution was annexed, and no security was offered
Costs
The application is dismissed with costs to the Respondent
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.
The upshot is that the application herein is devoid of merit. Accordingly, it is dismissed with costs to the Respondent.
Since substantial loss has not been proved, there are no grounds to reach a conclusion that the appeal will be rendered nugatory if the orders sought are not granted.
the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss
Whereas the Applicant has an undoubted right of appeal from the judgment of the lower court, the Respondent has an equally undoubted right to enjoy the fruits of his judgment.
Issues in the judgment
#Discrepancy in the date of the trial court's judgment: the Notice of Motion refers to orders 'issued on 28th August 2024' while the Applicant's affidavit and the court's own recital state the judgment was delivered on '29th August, 2024'
The Applicant's affidavit asserts the trial court ordered his eviction, but the quoted judgment of the trial court contains no order for vacant possession - only a declaration of ownership, a permanent injunction, and costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthembwa v Nzioka (Environment and Land Appeal E015 of 2024) [2025] KEELC 1125 (KLR)", Case Analysis (2025). Tawa Principal Magistrate's ELC Appeal (stay application from Tawa MCELC No. E007 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1125/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.