Mwadzina & 2 others v Mwakutseka (Environment and Land Appeal E001 of 2024) [2025] KEELC 7663 (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 Notice of Motion application dated 27th March 2025 seeking to stay execution of the Judgment delivered on 29th November 2023 pending the hearing and determination of the appeal is merited
- 2.Whether the court should exercise its discretion to grant the Applicants leave to file their appeal out of time
- 3.Whether the Applicants are entitled to the reliefs sought
- 4.Who will bear the costs of the Notice of Motion application dated 27th March 2025
Key legal issues
#Substantial loss as the cornerstone of a stay application
The Applicants failed to demonstrate that substantial loss would result absent a stay; the court could not tell whether they were in occupation of the suit property or apprehensive of eviction
The court applied James Wangalwa and Kenya Shell, holding that execution being set in motion is itself not substantial loss; the applicant must establish that execution would irreparably affect or negate the essential core of the appeal. On the affidavit evidence, which had no annexures, the Applicants did not prove their occupation or apprehended eviction, so this foundational condition failed.
Inordinate delay
An application filed about 1 year 5 months after judgment was inordinate and unexplained
Judgment was delivered on 29th November 2023 yet the application was only filed on 27th March 2025, despite a notice of appeal filed on 5th February 2024. The claim that typed proceedings were unavailable was unsupported: no letters, notices or certificate of delay were annexed, the supporting affidavit having no annexures at all.
Security for due performance of the decree
No security was offered or provided as mandatorily required under Order 42 Rule 6(2)(b)
Relying on Arun C. Sharma, the court reiterated that security under Order 42 is meant to guarantee due performance of the decree, not to punish the judgment debtor. The Applicants made no provision for security in their application, and the Respondent had specifically deponed that no security for costs had been offered or shown to be forthcoming.
Effect of non-existence of an appeal on stay and extension prayers
Both prayers automatically failed because there was no existing appeal before the court
Although a draft memorandum of appeal accompanied the application, the court found there was no existing appeal, so the prayers for stay and admission of appeal out of time could not stand. The court additionally directed that the appeal file, which had been opened erroneously, be closed.
Legal principles established
#- The three conditions for granting a stay of execution pending appeal under Order 42 Rule 6(2) - substantial loss, application without unreasonable delay, and security - are conjunctive and must all be met simultaneously
- An applicant seeking enlargement of time must demonstrate good and sufficient cause, and delay in obtaining typed proceedings is not automatically a panacea
- Costs follow the event under Section 27(1) of the Civil Procedure Act and the successful party is entitled to costs absent exceptional circumstances
Court orders
#- 1.The Notice of Motion application dated 27th March 2025 be and is hereby found to lack any merit and is dismissed
- 2.The prayers for admitting the appeal out of time and for stay of execution of the lower court's Judgment and decree automatically fail for the reason that there is no existing appeal
- 3.Costs awarded to the Respondents, to be borne by the Appellant/Applicants
- 4.This appeal file to be and is hereby closed having been opened erroneously
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court
- MCELC Case No. 89 of 2019
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 3B & 79G of the Civil Procedure Act, Cap. 21; Order 42 Rule 6 and Order 50 Rules 6 & 7 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the judgment dated 29th November 2023
Applicants failed to demonstrate substantial loss; the application was brought after inordinate delay of about 1 year 5 months; and no security for due performance of the decree was offered - all three conditions under Order 42 Rule 6(2) being conjunctive
Extension of time to file appeal out of time
Delay of 1 year 5 months was inordinate, unreasonable and inexcusable; no certificate of delay or letters requesting typed proceedings were availed as the supporting affidavit had no annexures
Costs
Costs awarded to the Respondents, to be borne by the Appellant/Applicants.
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.
That the Notice of Motion application dated 27th March, 2025 be and is hereby found to lack any merit and thus it is dismissed.
That the prayers for admitting the appeal out of time and for stay of execution of the lower court’s Judgment and decree automatically fails for the reason that there is no existing appeal.
That costs to be awarded to the Respondents to be borne by the Appellant/Applicants herein.
That this appeal file to be and is hereby closed having been opened erroneously.
The aspect of substantial loss has in my opinion not been demonstrated in any way.
it is my considered view that the delay of 1 year 5 months is not only inordinate, unreasonable but also inexcusable.
the three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive.
Issues in the judgment
#The judgment states the application was filed on 27th March 2025 in the heading and issues, but in the delay analysis states it was filed on 27th March 2023, an apparent internal inconsistency
The judgment refers to the applicants inconsistently as Plaintifi/Applicants and Appellant/Applicants even though the matter is not an appeal before this court
The court notes it was unable to access any of the parties' filed submissions yet proceeded to determine the application on its merits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwadzina & 2 others v Mwakutseka (Environment and Land Appeal E001 of 2024) [2025] KEELC 7663 (KLR)", Case Analysis (2025). Notice of Motion dated 27th March 2025 (arising from Kassim Bakari Mwakutseka v Chidisa Suleiman Mwadzina & 2 Others, MCELC Case No. 89 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7663/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.