Munyoki v Mue & 4 others (Environment and Land Appeal E058 of 2024) [2025] KEELC 5385 (KLR)
The bottom line
#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 orders sought - stay of execution of the judgment of the Subordinate Court pending appeal - ought to be granted
Key legal issues
#Whether the application for stay of execution was filed without unreasonable delay
Filing one and a half months after judgment was not inordinate delay
The court found as a fact, undisputed, that the application was lodged about six weeks after the judgment of 30th May 2024. Applying the Order 42 rule 6 threshold, it held this interval did not constitute inordinate delay, so this limb of the test was satisfied.
Whether the Applicant demonstrated substantial loss
Mere assertion of substantial loss is insufficient; the Applicant's alleged loss was not substantiated, and occupation alone does not guarantee continued occupation
The Applicant alleged he would suffer substantial loss because his family home stood on the suit property, but produced no valuation to show the magnitude of loss. The court held that the order to vacate was the very judgment appealed from, and continued occupation might itself be trespass, so the claim of loss was weak.
Whether security for the due performance of the decree should be given
The Applicant offered no security; the court conditioned the stay on a deposit of Kshs. 300,000
Security is a mandatory condition under Order 42 rule 6(2)(b). The Applicant neither provided security nor expressed willingness to abide by reasonable terms. Balancing the decree holder's investment of Kshs. 2,400,000 against the Applicant's position, the court granted a conditional stay to protect the successful litigant's rights.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
- Stay of execution pending appeal requires proof of substantial loss, absence of unreasonable delay, and security as the court may order
- Occupation of suit property does not of itself establish substantial loss since occupation might be in furtherance of trespass
Court orders
#- 1.Stay of execution of the judgment/order delivered on 30th May 2024 and the ensuing decree granted on condition that the Applicant deposits Kshs. 300,000/= in a joint interest-earning account of the Advocates on record within the next 30 days, failing which the stay order lapses
- 2.Costs of the application to abide the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate Court (Trial Magistrate's Court)
- Environment and Land Court Case No. E066 of 2021
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010
Relief refused
#Unconditional stay of execution
The Applicant provided no security and gave no proof of the magnitude of substantial loss; stay granted only conditionally upon a deposit of Kshs. 300,000
Costs
Costs of the Application will abide the Appeal
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 not just any loss that warrants granting stay of execution pending appeal. It must be substantial loss. The word substantial means significant or large and having substance. Thus, it should be loss that is tangibly above normal loss.
The fact that a party is in occupation does not guarantee him or her continued occupation as such occupation might be in furtherance of trespass.
it would be in the interest of justice to order a stay of execution with a condition that the Applicant deposits Kshs. 300.000/= in a joint interest earning account of the Advocates on record within the next 30 days failure to which the stay order lapses. The cost of the Application will abide the Appeal. Orders accordingly.
Issues in the judgment
#The judgment is internally inconsistent about the decision appealed from: it elsewhere describes it as the judgment of the Subordinate Court/Trial Magistrate, yet the heading of the appealed case uses 'Environment and Land Court Case No. E066 of 2021'
The application is said to be brought by the Appellant 'as against the Respondents', but the 4th Respondent's averments refer to the Applicant having filed 'the primary suit' as a plaintiff and to a refund ordered 'by the 1st Defendant', suggesting confusion in the identity/roles of parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyoki v Mue & 4 others (Environment and Land Appeal E058 of 2024) [2025] KEELC 5385 (KLR)", Case Analysis (2025). Environment and Land Court Case No. E066 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5385/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.