Benson (Suing on Behalf of the Estate of Benson Mbuuri alias Benson M’buuri M’nchebere alias Kathakai Benson M’buri – Deceased) v Kabiti (Sued as the Legal Representative of M’mworia M’mukangu - Deceased) & 3 others (Environment and Land Appeal E006 of 2024) [2026] KEELC 3360 (KLR)
The bottom line
#The Environment and Land Court in Meru refused to pause execution of a land judgment because the applicant showed no real loss, delay was fine, but security was inadequate.
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 application meets the criteria upon which the court exercises jurisdiction to grant an order staying execution of its judgment/decree/order pending the hearing and disposal of an appeal in the Court of Appeal
Key legal issues
#Substantial loss
Not demonstrated; the judgment had been fully executed and the applicant offered no evidence of development on or occupation of the suit land
The court found the register cancellation/rectification already effected, rendering that limb of the stay moot. On the injunction, the applicant produced no evidence of permanent development or of occupation of the land, so no substantial loss was shown to warrant staying the injunctive limb of the decree.
Delay
No inordinate delay; application filed 10 days after judgment
The impugned judgment was delivered on 13/4/2026 and the application filed on 23/4/2026, a lapse of 10 days, which the court found not to constitute inordinate delay.
Security
Not satisfied; the applicant offered a 0.066-acre title without evidence of its value
Despite being granted leave suo motu to file a supplementary affidavit on security, the applicant failed to provide valuation reports and offered only a small parcel whose value he did not disclose, showing he gave no serious attention to the security requirement.
Legal principles established
#- Stay of execution under Order 42 rule 6(2) requires demonstration of substantial loss, absence of unreasonable delay, and provision of security
- Where a decree has already been executed, a stay application may be overtaken by events and the remedy lies in a conservatory order under rule 5(2)(b) of the Court of Appeal Rules in that Court
Court orders
#- 1.The application for stay of execution is declined
- 2.The applicant shall bear costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment dated 13/4/2026 pending appeal
Judgment already fully executed as regards cancellation/rectification of registers; no substantial loss demonstrated; security not seriously offered
Stay of the permanent injunction
No evidence of permanent or substantial development on, or occupation of, the suit land by the applicant
Costs
The applicant shall bear costs of the application
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.
No order for stay of execution shall be made under subrule (1) unless— a. the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and b. such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
What may be available to the applicant at this point is an appropriate conservatory or status quo order under rule 5(2)(b) of the Court of Appeal Rules 2022, which is only available in the Court of Appeal.
In the circumstances, I do not think the applicant gave serious attention to the requirement for security under Order 42 rule 6(2) of the Civil Procedure Rules.
Taking all the above into account, I do not think the application under consideration has satisfied the criteria stipulated under Order 42 rule 6 (2) of the Civil Procedure Rules. The result is that the application is declined. The applicant shall bear costs of the application.
Issues in the judgment
#Applicant's agent identified with inconsistent first names (Moses vs Martin)
Court notes it is unclear whether the person litigating for the deceased applicant's estate has a grant of representation; the applicant is stated to be deceased though the application is styled in his name
Motion dated 23/3/2026 but supporting affidavits sworn 23/4/2026 onwards; dates possibly inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson (Suing on Behalf of the Estate of Benson Mbuuri alias Benson M’buuri M’nchebere alias Kathakai Benson M’buri – Deceased) v Kabiti (Sued as the Legal Representative of M’mworia M’mukangu - Deceased) & 3 others (Environment and Land Appeal E006 of 2024) [2026] KEELC 3360 (KLR)", Case Analysis (2026). Not stated (Meru ELC appeal; ruling on notice of motion dated 23/3/2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3360/eng@2026-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.