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ELCAllowedMakueni CMELC No. E032 of 2021 (Appeal)

Muli & 2 others v Matolo & another (Environment and Land Appeal E005 of 2024) [2025] KEELC 3527 (KLR)

High Court of Kenya (Environment and Land)
5 May 2025
EOE. O. Obaga
804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's High Court paused an eviction pending appeal because the family living on the land would suffer real loss — but only if they deposit Kshs. 100,000 within 30 days.

What this practically means

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Executive summary

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This is a ruling by Hon. E. O. Obaga, Judge, delivered on 5th May 2025 at Makueni on a Notice of Motion dated 9th May 2024 by the Appellants/Applicants seeking stay of execution of the judgment in Makueni CMELC No. E032 of 2021, delivered by Hon. P. N. Gesora, Chief Magistrate, on 11th April 2024, pending hearing and determination of their appeal. The Applicants argued they have lived on the suit property for many years (at least since 1998), would suffer substantial loss through eviction and demolition of their houses, rendering the appeal nugatory, and offered security for costs. The Respondents opposed, contending the application was frivolous, that the Applicants failed to file a notice of intention to act in person, that no threat of eviction was demonstrated, and that no security had been offered. The court framed a single issue: whether the Applicants met the Order 42 Rule 6(2) threshold. It found no unreasonable delay, found substantial loss would follow eviction, noted the offer of security, and applied the authorities of Joseph Simiyu Mukenya v Agnes Naliaka Cheseto and Leonard Awori v Patrick Ochieng. The application was allowed: stay of execution granted pending appeal, conditional upon the Applicants depositing Kshs.100,000 as combined security within 30 days, failing which the stay lapses automatically.

Questions the Court framed

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

  1. 1.Whether the Applicants have met the threshold for grant of stay pending appeal

Key legal issues

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01

Whether the Applicants met the threshold for stay of execution pending appeal

Holding

Application allowed; threshold met on delay, substantial loss and security

Reasoning

The court applied Order 42 Rule 6(2). The judgment was delivered 11 April 2024 with an informal 30-day stay, and the application was filed 9 May 2024, so there was no unreasonable delay. The Applicants have occupied the suit property since at least 1998 and have houses there; eviction and demolition would cause substantial loss and render the appeal nugatory. They offered security for costs, fixed at Kshs.100,000.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must show application without unreasonable delay, substantial loss absent stay, and security for costs.

Court orders

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  1. 1.Stay of execution of the judgment in Makueni CMELC No. E032 of 2021 delivered on 11th April 2024 and all consequential orders, pending hearing and determination of the appeal
  2. 2.Applicants to deposit a combined security for costs of Kshs.100,000 in court within 30 days failing which the stay shall automatically lapse

The bench

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

EO
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Makueni
Makueni CMELC No. E032 of 2021
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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 Applicants shall deposit a combined figure for security for costs in court in the sum of Kshs.100,000 within 30 days failing which the stay shall automatically lapse without any further recourse to court.
p. 3final orders - conditional stay and security
If their houses were to be demolished and they are evicted, this will cause them substantial loss and render the appeal nugatory.
p. 2substantial loss
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
p. 2purpose of stay (quoting Joseph Simiyu Mukenya v Agnes Naliaka Cheseto)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muli & 2 others v Matolo & another (Environment and Land Appeal E005 of 2024) [2025] KEELC 3527 (KLR)", Case Analysis (2025). Makueni CMELC No. E032 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3527/eng@2025-05-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.