Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Court Case No. E066 of 2021 (Appeal)

Munyoki v Mue & 4 others (Environment and Land Appeal E058 of 2024) [2025] KEELC 5385 (KLR)

High Court of Kenya (Environment and Land Division)
16 July 2025
2,279 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 24th July 2024 by Peter Mwangangi Munyoki, the Appellant, seeking under Order 42 Rule 6 of the Civil Procedure Rules a stay of execution of the judgment and decree of the trial court (Honourable Joseph Were) delivered on 30th May 2024 in Environment and Land Court Case No. E066 of 2021, pending the hearing and determination of his appeal. The trial court had found in favour of the 4th Respondent and required the Appellant to vacate the suit property within 90 days, with a refund of Kshs. 650,000 ordered. The Appellant contended he would suffer substantial loss and that his family home on the suit property faced eviction. The 4th Respondent opposed, arguing the appeal was premised on mere denials, that the Appellant had ignored prior court orders halting construction, and urged security for costs given his investment of Kshs. 2,400,000 in purchasing the property. The court framed a single issue: whether the orders sought ought to be granted. It restated the Order 42 rule 6 thresholds of substantial loss, absence of unreasonable delay and security. It found the one-and-a-half-month delay not inordinate, but held the Applicant's claim of substantial loss unsubstantiated, there being no valuation and occupation possibly being trespass. Balancing the parties' competing rights, the court conditionally allowed the application: stay of execution on condition that the Applicant deposit Kshs. 300,000 in a joint interest-earning account of the advocates within 30 days, failing which the stay lapses; costs to abide the appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the orders sought - stay of execution of the judgment of the Subordinate Court pending appeal - ought to be granted

Key legal issues

#
01

Whether the application for stay of execution was filed without unreasonable delay

Holding

Filing one and a half months after judgment was not inordinate delay

Reasoning

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.

p. 4
02

Whether the Applicant demonstrated substantial loss

Holding

Mere assertion of substantial loss is insufficient; the Applicant's alleged loss was not substantiated, and occupation alone does not guarantee continued occupation

Reasoning

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.

p. 5
03

Whether security for the due performance of the decree should be given

Holding

The Applicant offered no security; the court conditioned the stay on a deposit of Kshs. 300,000

Reasoning

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.

p. 5

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. 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. 2.Costs of the application to abide the Appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

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

p. 4

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.
p. 3threshold of substantial 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.
p. 5occupation and substantial loss
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.
p. 5disposition

Issues in the judgment

#
minor

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'

minor

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.