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ELCDismissedNot stated in judgment

Gathaga & another v Mureithi & 2 others (Environment & Land Case 86 of 2016) [2025] KEELC 2907 (KLR)

Environment and Land Court
26 March 2025
1,176 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (C.K. Nzili J) on a notice of motion dated 18/12/2024 in which the applicants sought a stay of further execution of the court's judgment of 19/12/2022, pending an intended appeal. The applicants argued they filed a notice of appeal without delay, requested proceedings which had not been availed, that the respondents had begun enforcing the decree, and that the appeal would be rendered nugatory; they offered to provide security. The respondents, through Joseph Mureithi, opposed, showing that the judgment had been perfected and fully executed: the waterway was surveyed and opened between 11/12/2024 and 8/1/2025 in the presence of all parties, and boundaries for plots Trans Nzoia Suwerwa/382, 387, 668 and 471 were fixed. They also faulted the roughly two-year delay as unexplained and the application as an abuse of process. The court restated the Order 42 Rule 6 prerequisites: substantial loss, no unreasonable delay, and security. Applying them, it found the application filed after almost two years of unexplained delay; that no security was offered (submissions being no substitute for pleadings); that no substantial loss or nugatory-appeal prejudice was demonstrated, execution being a lawful process; and that the decree having been fully enforced, there was nothing left to stay. The application was dismissed for want of merit with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for stay of execution pending appeal was brought without unreasonable delay
  2. 2.Whether the applicants demonstrated substantial loss or that the appeal would be rendered nugatory
  3. 3.Whether the applicants offered sufficient security for the due performance of the decree
  4. 4.Whether there remained anything capable of being stayed given the state of execution of the decree

Key legal issues

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01

Unreasonable delay in bringing the stay application

Holding

The application filed almost two years after judgment, with no plausible explanation beyond a letter requesting proceedings, was brought after unreasonable delay

Reasoning

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.

p. 2
02

Security and substantial loss

Holding

The applicants offered no security and demonstrated no substantial loss; submissions cannot substitute for pleading security in the application

Reasoning

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.

p. 2
03

Whether anything remained to be stayed

Holding

The decree had been fully implemented - survey done, waterway opened and boundaries fixed - so there was nothing left to stay

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 18/12/2024 is dismissed for want of merits with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Relief refused

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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

p. 3

Costs

Dismissed with costs to the respondents

Quotable passages

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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.
p. 2Purpose of stay of execution pending appeal
Therefore, it is dismissed for want of merits with costs to the respondents.
p. 3Final orders - dismissal of the stay application
Court orders are not issued in vain or in a vacuum.
p. 3Enforcement of court orders

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.