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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the conditions for stay of execution under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules
The Applicant failed to demonstrate substantial loss and sufficient cause; the application was dismissed
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.
Whether stay of execution is available to a litigant who has not appealed against the decree
It is doubtful; granting such a stay would effectively stay the primary decree through the back door
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.
Whether the Court could alternatively order payment of the decretal sum in instalments under Order 21 rule 12(2)
The Court has such discretion but the Applicant never invoked it and showed no sufficient reason for inability to pay in a lump sum
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.
Legal principles established
#- 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
#- 1.The Application dated 18/06/2024 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.