Airwave Real Estate Limited v Mwaura & 2 others (Environment and Land Appeal E118 of 2024) [2025] KEELC 4916 (KLR)
The bottom line
#The High Court refused to pause enforcement of a land judgment against Airwave Real Estate, confirming that filing an appeal alone does not stop execution in Kenya.
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 Court should grant the prayers for stay of execution of the Judgment and the decree in Ruiru MELC Suit No. 165 of 2022 pending the hearing and determination of the appeal.
- 2.Who will bear the costs of the Notice of Motion Application dated 16th October, 2024
Key legal issues
#Whether the appellant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules
The appellant failed to satisfy any of the conditions for grant of stay; the application was dismissed with costs
The court set out the Order 42 Rule 6 conditions: substantial loss, application made without unreasonable delay, and security for due performance of the decree. It also applied the twin-limb test of arguability of the appeal and nugatory-ness if stay is refused. On the material before it, the court was not persuaded the appeal was arguable nor that refusal of stay would render it nugatory, and found none of the grounds fulfilled.
Legal principles established
#- An applicant for stay of execution must satisfy the twin limbs that the appeal is arguable and that, if stay is not granted, a successful appeal would be rendered nugatory; both limbs must be demonstrated
- The right of appeal must be balanced against the plaintiff's right to enjoy the fruits of the judgment
- Strong grounds of appeal alone do not justify a stay; the applicant must show sufficient cause, substantial loss, security and no unreasonable delay
Court orders
#- 1.The Notice of Motion dated 16th October 2024 seeking stay of execution of the judgment and decree in Ruiru MELC No. 165 of 2022 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Ruiru Magistrate's Court (Environment and Land)
- Ruiru MELC No. 165 of 2022
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the subordinate court; application brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 42 Rule 2 and Order 50 Rule 1 of the Civil Procedure Rules
Relief refused
#Stay of execution of the order and decree in Ruiru MELC No. 165 of 2022 pending hearing and determination of the application and of the appeal
Applicant failed to satisfy the conditions for stay under Order 42 Rule 6 - substantial loss, unreasonable delay and security - and failed to show the appeal is arguable or would be rendered nugatory
Costs
Application dismissed with costs (costs of the application to the 1st 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.
I find that the Applicant has not fulfilled any of the grounds to enable me grant the stay. I find this Application has no merit and I dismiss it with costs. It is so ordered.
I am not persuaded, that the appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, I am not persuaded that if the Application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory.
The Applicant who would succeed upon such an Application must persuade the Court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous.
Issues in the judgment
#The judgment gives inconsistent dates for the impugned judgment, describing it as delivered on 11/10/2024 in one passage and 11/10/2023/11/10/2022 in others
The judgment inconsistently describes the applicant, referring to the Plaintiffs/Respondents' response and the Plaintifi/1st Respondent while the applicant is styled Appellant/Applicant and elsewhere Plaintifi/Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Airwave Real Estate Limited v Mwaura & 2 others (Environment and Land Appeal E118 of 2024) [2025] KEELC 4916 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Ruiru MELC No. 165 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4916/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.