Gathaga & another v Mureithi & 2 others (Environment & Land Case 86 of 2016) [2025] KEELC 2907 (KLR)
The bottom line
#The Kitale Environment and Land Court refused to pause execution of a land judgment because the applicants waited almost two years, offered no security, and the decree had already been fully enforced.
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 for stay of execution pending appeal was brought without unreasonable delay
- 2.Whether the applicants demonstrated substantial loss or that the appeal would be rendered nugatory
- 3.Whether the applicants offered sufficient security for the due performance of the decree
- 4.Whether there remained anything capable of being stayed given the state of execution of the decree
Key legal issues
#Unreasonable delay in bringing the stay application
The application filed almost two years after judgment, with no plausible explanation beyond a letter requesting proceedings, was brought after unreasonable delay
Judgment was delivered on 19/12/2022 and the notice of appeal filed on 10/1/2023, but the stay application was only filed on 18/12/2024. The applicants attached only a letter requesting the judgment and proceedings and offered no plausible explanation for the roughly two-year gap, failing the timeliness requirement of Order 42 Rule 6.
Security and substantial loss
The applicants offered no security and demonstrated no substantial loss; submissions cannot substitute for pleading security in the application
Security must be sufficient to guarantee due performance of the decree, as per Arun C. Sharma. The applicants offered nothing beyond a reference in submissions, which are persuasive but not pleadings. They also failed to state what substantial loss they would suffer or how the appeal would be rendered nugatory, and execution is a lawful process that does not amount to substantial loss.
Whether anything remained to be stayed
The decree had been fully implemented - survey done, waterway opened and boundaries fixed - so there was nothing left to stay
The respondents executed the decree: the surveying and fixing of the waterway was done between 11/12/2024 and 8/1/2025 in the presence of all parties, and boundaries for the plots were fixed. The applicants were informed of the pending implementation and did not deny it, and did not identify what partial implementation had occurred and what remained.
Legal principles established
#- A stay of execution should only be granted where the applicant has shown sufficient cause under the three prerequisites of Order 42 Rule 6 of the Civil Procedure Rules
- Execution is a lawful process that does not by itself amount to substantial loss
- A court cannot stay orders that have already been executed; there must be orders capable of being stayed
Court orders
#- 1.The application dated 18/12/2024 is dismissed for want of merits with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#Stay of further execution of the judgment delivered on 19/12/2022 pending appeal
The prerequisites under Order 42 Rule 6 were not met: inordinate unexplained delay of almost two years, no security offered, no substantial loss demonstrated, and the decree had already been fully executed so there was nothing left to stay
Costs
Dismissed with costs to the respondents
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 purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.
Therefore, it is dismissed for want of merits with costs to the respondents.
Court orders are not issued in vain or in a vacuum.
Issues in the judgment
#Internal inconsistency in dates: the application dated 18/12/2024 seeks to stay a judgment 'delivered on 19/12/2022', but paragraph 10 records the notice of appeal as filed 10/1/2023 and the application filed 18/12/2024, described as a delay of 'almost 2 years' while respondents plead delay 'after 730 days'; the parties' party names are not given in full in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Gathaga & another v Mureithi & 2 others (Environment & Land Case 86 of 2016) [2025] KEELC 2907 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2907/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.