Waita & 2 others v Waita (Legal Representative of the Estate of Daniel Mutuse Waita – Deceased) (Environment and Land Appeal E009 of 2023) [2025] KEELC 3840 (KLR)
The bottom line
#A Kenyan land court refused to pause execution of a judgment because the losing parties showed no harm, delayed, and offered no security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether stay of execution of the judgment and decree dated 16th October, 2023 in Kilung ELC No. E39 of 2019 can issue
- 2.Whether the injunctive orders sought are merited
- 3.Who should bear costs of the application
Key legal issues
#Whether the Applicants met the threshold under Order 42 Rule 6(2) for stay of execution pending appeal
The threshold was not met: no substantial loss shown, no demonstration that the appeal would be rendered nugatory, and no offer of security.
The court held that while the Applicants had an undoubted right of appeal, the Respondent equally had the right to enjoy the fruits of her judgment. The Applicants did not controvert that the suit property is registered in the name of Daniel Mutuse Waita (Deceased) and that the Respondent has been in exclusive occupation. They neither showed substantial loss nor offered security, so the stay could not issue.
Whether temporary injunction pending appeal should issue
Refused; the Applicants did not show a prima facie case, irreparable harm, or that refusal would render the appeal nugatory.
Guided by Venture Capital & Credit Limited v Consolidated Bank of Kenya Ltd and the Giella v Cassman Brown principles, the court found the Applicants had not demonstrated any interest in the suit property, which is registered in the name of the Respondent's deceased husband, nor that execution would render their appeal nugatory. The discretion is therefore exercised against the Applicants.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and must offer security for the due performance of the decree.
- Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution.
- A temporary injunction pending appeal will be refused where the applicant cannot show that refusing it would render the appeal nugatory.
Court orders
#- 1.The Notice of Motion dated 27th October, 2023 is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (Kilungu)
- Kilung ELC No. E39 of 2019
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010 (appeal from subordinate court)
Relief refused
#Temporary stay of execution of the judgment and decree pending the hearing and determination of the appeal
Applicants failed to demonstrate substantial loss, absence of unreasonable delay, or willingness to furnish security
Temporary injunction restraining the Respondent from entering, transferring, cultivating, constructing on or interfering with land parcel number Kalembwani/Konza South Block 2/6X9 pending appeal
No demonstration that execution would render the appeal nugatory; Applicants are not registered owners and offered no security
Costs of the application
Application lacked merit; costs awarded to the Respondent
Costs
The application is dismissed with costs to the Respondent.
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.
Whereas the Applicants have an undoubted right of appeal from the judgment of this court, the Respondent has an equally undoubted right to enjoy the fruits of its judgment.
the Applicants did not demonstrate the manner in which they stand to sufier substantial loss in the event the subordinate court's decree is executed by the Respondent.
In the circumstances of the case, it is manifestly clear that the application is deficient of any merit. The same is dismissed with costs.
Issues in the judgment
#The judgment inconsistently describes the parties' roles - the Applicants are called 'Appellants/Applicants' and the court refers to the Respondent's judgment as 'a judgment of this court' when it was a subordinate court judgment
Only the Respondent's submissions were on record; the Applicants' submissions were not filed, leaving one side of the argument unrepresented in submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waita & 2 others v Waita (Legal Representative of the Estate of Daniel Mutuse Waita – Deceased) (Environment and Land Appeal E009 of 2023) [2025] KEELC 3840 (KLR)", Case Analysis (2025). Kilungu ELC Appeal (arising from Kilung ELC No. E39 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3840/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.