Kerario v Masero (Environment & Land Case 9 of 2017) [2025] KEELC 3576 (KLR)
The bottom line
#A Kenyan land court paused execution of a judgment, but only because the applicant agreed to deposit Kshs. 350,000 as security within 30 days.
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 has met the threshold for stay of execution pending the hearing and determination of appeal
- 2.Costs of the application
Key legal issues
#Whether the application for stay of execution pending appeal met the Order 42 Rule 6 conditions
Stay granted conditionally: although there was inordinate delay of about 10 months which would alone justify dismissal, the court in the interest of justice glossed over the delay, and conditioned stay on the Applicant depositing Kshs. 350,000 as security within 30 days.
The court accepted stay is discretionary and must balance the Applicant's interest in preserving the status quo pending appeal against the Respondent's right to enjoy the fruits of judgment. Delay of 10 months was inordinate and unexplained, but the court exercised discretion in the interest of justice to consider the merits. As the Applicant had provided no security, the court imposed a deposit of Kshs. 350,000 in a joint interest-earning account within 30 days, failing which the stay lapses.
Legal principles established
#- The purpose of stay of execution is to preserve the substratum of the case so the appeal is not rendered nugatory.
- Security for due performance of the decree is a mandatory condition for stay under Order 42 Rule 6(2)(b), and competing interests of the parties are balanced through suitable security.
Court orders
#- 1.Stay of execution of the judgment delivered on 20th February 2024 granted on condition that the Applicant deposits Kshs. 350,000 in a joint interest earning account of the advocates for the Applicant and the Respondent within 30 days, in default the stay lapses
- 2.Costs of the application to be borne by the applicant
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
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.
It is trite law that the purpose of stay of execution is to preserve the substratum of the case.
I find that 10 months is inordinate delay, because the Applicant ought to have moved the soonest possible. Any slight delay should be explained.
It is not in contention that the Applicant has not provided any security for due performance or shown any willingness to do so.
I find that in the interest of justice, it would be prudent to grant an order of stay with a condition that the Applicant deposits Kshs. 350,000 in a joint interest earning account of the advocates for the Applicant and the Respondent within the next 30 days, in default the stay of execution lapse.
The costs of the application to be borne by the applicant.
Issues in the judgment
#The judgment states the Applicant filed his appeal on 9th September 2024, over 7 months after the notice of appeal, yet also records the memorandum of appeal as dated 5th September 2024; the dates do not reconcile on the face of the judgment.
The judgment refers to 'the second condition' when discussing timeliness, although timeliness is stated elsewhere as part of the second limb of Order 42 Rule 6(2)(a); the numbering of conditions is internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kerario v Masero (Environment & Land Case 9 of 2017) [2025] KEELC 3576 (KLR)", Case Analysis (2025). Migori ELC No. 9 of 2017 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3576/eng@2025-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.