Mukono & 3 others (Suing as the Board of Trustees of Christian Worship International Ministries (CWIM)) v Board of Trustees of Christian Foundation Fellowship Kiamutugu & 2 others (Land Case Appeal E040 of 2025) [2026] KEELC 4436 (KLR)
The bottom line
#A Kenyan court paused eviction and land register changes pending appeal because executing them first would permanently change the situation, but only if Kshs.200,000 security is deposited within 30 days.
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 appellants have satisfied the conditions for the grant of an order of stay of execution pending appeal.
- 2.Who pays the costs?
Key legal issues
#Delay in filing the stay application
An application lodged approximately two weeks after judgment was filed without unreasonable delay.
The judgment was delivered on 8th August 2025 and the application lodged on 21st August 2025, about two weeks later. The respondents did not seriously contest timeliness. The court was satisfied the application was presented expeditiously.
Substantial loss where the decree is declaratory, eviction and rectification orders
Execution before the appeal would fundamentally alter both the legal and factual status of the suit properties, exposing the appellants to substantial loss.
The decree was not a money decree; it declared ownership, ordered eviction, and directed rectification of the land register. Eviction would change possession and alter the factual substratum of the appeal; cancellation of register entries affects registered proprietary interests; restoration is seldom straightforward. Execution would substantially change the subject matter before the appellate court pronounces itself.
Whether the application was overtaken by events
Payment of decree registration fees alone did not show execution had been completed; the interim stay preserved the position.
The only material was a receipt for registration fees. There was no evidence the Land Registrar had effected the cancellations or completed rectification before the interim orders. Absent evidence of completed execution, the application was not overtaken by events.
Security for due performance of the decree
The court may fix security of its own motion; Kshs.200,000 was imposed as a condition for the stay.
Order 42 Rule 6(2)(b) contemplates such security as the Court may order. Since the decree's only monetary component was costs, requiring Kshs.200,000 in an interest-earning account within 30 days would serve the ends of justice, with the stay lapsing on default.
Legal principles established
#- An applicant for stay under Order 42 Rule 6(2) bears the burden of satisfying each of the three conditions: substantial loss, no unreasonable delay, and security.
- Substantial loss is the cornerstone of a stay application.
- The purpose of stay pending appeal is preservation of the subject matter of the appeal, not determination of its prospects.
- Security for due performance may be imposed by the Court on its own motion; the applicant need not expressly propose it.
Court orders
#- 1.A conditional stay of execution of the judgment delivered on 8th August 2025 and dated 14th August 2025 in Gichugu PM's ELC Case No. 45 of 2023, pending the hearing and determination of the appeal, is granted.
- 2.The stay is conditional upon the appellants depositing Kshs.200,000 in an interest-earning bank account in the joint names of parties' counsel or in Court as security for the due performance of the decree within thirty (30) days.
- 3.In default of compliance with the security condition, the stay order shall automatically lapse without the necessity of any further order of the Court.
- 4.Costs of the application shall abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Gichugu Principal Magistrate's Court (PM's ELC Case No. 45 of 2023)
- Gichugu PM's ELC Case No. 45 of 2023
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
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.
Accordingly, the Notice of Motion dated 21st August 2025 is allowed on the following terms:
That a conditional stay of execution of the judgment delivered on 8th August 2025, and dated 14th August 2025, in Gichugu PM's ELC Case No. 45 of 2023, pending the hearing and determination of the appeal, is granted.
The stay granted in (a) above is conditional upon the appellcants depositing Kshs.200,000/ = [two hundred thousand] in an interest earning bank account in the joint names of parties’ counsel or in Court as security for the due performance of the decree within the next thirty (30) days from the date of this ruling.
In default of compliance with Order (b) above, the stay order granted herein shall automatically lapse without the necessity of any further order of the Court.
Costs of the application shall abide the outcome of the appeal.
While the respondents are undoubtedly entitled to enjoy the fruits of their judgment, that right must, in the circumstances of this case, be balanced against the equally important need to preserve the subject matter of the appeal so that the appellate process remains efiective and meaningful.
Issues in the judgment
#Internal date inconsistency: the judgment states the submissions by the appellants' counsel were dated 16th February 2026, after the respondents' submissions dated 9th October 2025, which is chronologically unusual but not fatal.
The judgment refers to itself both as an application to be determined and as a 'ruling' in the security order, though it is styled a judgment delivering a decision on a notice of motion.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Matsitsi (Suing as Personal Representative of the Estate of Benson Shilibea (Deceased)) v Construction Company Limited (Cause 2178 of 2017) [2024] KEELRC 2390 (KLR)[2024] KEELRC 2390 (KLR)30 Sept 2024applied
Cite this brief
#Cite this brief
Caselaw, "Mukono & 3 others (Suing as the Board of Trustees of Christian Worship International Ministries (CWIM)) v Board of Trustees of Christian Foundation Fellowship Kiamutugu & 2 others (Land Case Appeal E040 of 2025) [2026] KEELC 4436 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal from Gichugu PM's ELC Case No. 45 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4436/eng@2026-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.