Musau & 2 others v Kiamba (Environment and Land Appeal E014 of 2024) [2025] KEELC 6565 (KLR)
The bottom line
#A Kenyan land court paused eviction of three appellants until their appeal is heard, but only after they deposit Kshs.100,000 as 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 the Applicants/Appellants have demonstrated the threshold for issuance of orders of stay of execution pending appeal
- 2.Whether the Applicants have locus standi (raised by the Respondent in submissions)
Key legal issues
#Threshold for stay of execution pending appeal under Order 42 Rule 6(2)
The Applicants satisfied the conditions: substantial loss, no unreasonable delay, and willingness to furnish security as ordered by the court.
The court applied Order 42 Rule 6(1) and (2) and the Butt v Rent Restriction Tribunal principles. The Applicants faced eviction under the decree, which would cause them hardship and render their arguable appeal nugatory. The application was filed about a month after judgment, showing no delay. The court imposed security of Kshs.100,000/= within 30 days, drawing on Arun C Sharma on the purpose of security.
Locus standi of the Appellants (death of 1st Appellant; 2nd and 3rd Appellants did not testify below)
The court did not determine locus standi at the stay stage; the fact that not every defendant testified is not a legal bar, and the arguability of the appeal sufficed for stay.
The Respondent argued the 1st Appellant was deceased and the 2nd and 3rd Appellants gave no evidence below, so they had nothing to appeal against. The court noted the Applicants' contention that it is not a legal requirement that every Defendant should testify, and that the memorandum of appeal raised arguable grounds including that they were wrongly sued as non-parties to the sale agreement.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal.
- Security under Order 42 is to guarantee due performance of the decree, not to punish the judgment-debtor.
Court orders
#- 1.Stay of execution of the decree in Tawa ELC No. E002 of 2023 together with all consequential orders and proceedings granted pending the hearing and determination of the Appeal
- 2.Stay granted on condition that the Applicants deposit Kshs.100,000/= in court within 30 days as security for any decree which may ultimately be binding upon them
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Tawa)
- TAWA MCELC CASE NO. E002/2023
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (appellate stay of execution jurisdiction)
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.
In the circumstances of the case, it is in the interest of justice that the application should be allowed in terms of prayer number three (3) with a condition that the Applicants do deposit Kshs.100,000/= in court within 30 days as security for any decree which may ultimately be binding upon them.
It is manifestly clear that if the eviction order is executed, then the Applicants risk being put in hardship.
Whereas the Applicants have an undoubted right of appeal against the decree of the trial court delivered on 29th August, 2024 in TAWA MCELC CASE NO. E002/2023, the Respondent has an equally undoubted right to enjoy the fruits of his judgment.
The Applicants have demonstrably shown that there was no delay in the filing of the present application which was filed barely a month after judgment was delivered by the lower court on 29th August, 2024.
Issues in the judgment
#Internal date inconsistencies: a supplementary affidavit is dated 24th October, 2025 although the ruling was delivered on 2nd October, 2025; a ruling of this court is also dated 5th May, 2024, before the lower court judgment of 29th August, 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musau & 2 others v Kiamba (Environment and Land Appeal E014 of 2024) [2025] KEELC 6565 (KLR)", Case Analysis (2025). Tawa ELC Appeal arising from Tawa MCELC Case No. E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6565/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.