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ELCDismissed· [2025] KEELC 3751 (KLR)

Waichari (Suing as an Administrator of the Estate of Francis Albert Waichari) v Kairu (Practicing as Kimani Kairu & Co Advocates) (Enviromental and Land Originating Summons E007 of 2024) [2025] KEELC 3751 (KLR)

High Court of Kenya (court division not stated in judgment)
13 May 2025
2,540 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by Mogeni J at Thika determines a Notice of Motion dated 18/06/2024 in which the Defendant/Applicant sought a stay of execution of a judgment dated 06/06/2024 ordering him to pay the Plaintiff/Respondent Kesh 52,665,880, being the balance of Kesh 90,000,000 the Applicant, acting as the Respondent's agent, had received from the sale of suit property but not remitted. The Applicant sought a stay of at least 90 days to allow him to comply, apprehending ruthless execution. The Respondent opposed, terming the application an afterthought brought in bad faith after failed out-of-court settlement attempts. The court framed a single issue: whether stay of execution should be granted. Applying Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, the court found the Applicant failed to demonstrate substantial loss; mere apprehension of execution pursuant to a lawful court order does not constitute substantial loss. The court further doubted whether stay is available at all to a litigant who has not appealed, noting no appeal was filed and no application for instalments under Order 21 rule 12(2) was made. The court also observed the Applicant gave no reason for inability to pay the decretal sum in a lump sum. Since both statutory conditions must be satisfied, the failure on substantial loss disposed of the application without considering security. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Holding

The Applicant failed to demonstrate substantial loss and sufficient cause; the application was dismissed

Reasoning

The Court set out the four requirements: sufficient cause, substantial loss, security, and filing without unreasonable delay. The Applicant's mere apprehension of execution did not amount to substantial loss since execution would be based on a lawful order of the court. No appeal had been preferred against the decree, and the Court doubted whether stay is even available to a litigant who has not appealed. Having failed the substantial loss threshold, security need not be considered as both conditions must be met.

p. 3
02

Whether stay of execution is available to a litigant who has not appealed against the decree

Holding

It is doubtful; granting such a stay would effectively stay the primary decree through the back door

Reasoning

The Court noted there was no pending appeal; the Applicant sought stay without preferring an appeal. Relying on Odunga's Digest, Sophia Lenya and Raymond M. Omboga, the Court held that a party cannot obtain a stay of a decree that is not the subject of an appeal, as that would allow indirect stay of an unchallenged decree.

p. 4
03

Whether the Court could alternatively order payment of the decretal sum in instalments under Order 21 rule 12(2)

Holding

The Court has such discretion but the Applicant never invoked it and showed no sufficient reason for inability to pay in a lump sum

Reasoning

Order 21 rule 12(2) permits the Court, on application by the judgment-debtor, to order payment by instalments or postponement upon sufficient cause. The discretion must be exercised judiciously and only when invoked. The Applicant made no such application and offered no evidence beyond apprehension of execution; mere apprehension does not attract the discretion.

p. 5

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution; without evidence of it a stay should not issue
  • A litigant who has not appealed against a decree cannot obtain a stay of that decree; doing so would be obtaining stay through the back door
  • Both conditions under Order 42 Rule 6(2) - substantial loss and security - must be satisfied for a stay application to succeed

Court orders

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  1. 1.The Application dated 18/06/2024 is dismissed
  2. 2.Costs of the Application to the Respondent
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (stay of execution); alternative recourse noted under Order 21 rule 12(1) and (2)

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, "Waichari (Suing as an Administrator of the Estate of Francis Albert Waichari) v Kairu (Practicing as Kimani Kairu & Co Advocates) (Enviromental and Land Originating Summons E007 of 2024) [2025] KEELC 3751 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3751/eng@2025-05-13

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