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ELCAllowedNot stated in the judgment (appeal from Gichugu PM's ELC Case No. 45 of 2023)

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)

Environment and Land Court
15 July 2026
2,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellants moved the Environment and Land Court by notice of motion dated 21st August 2025 under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of a judgment delivered on 8th August 2025 in Gichugu PM's ELC Case No. 45 of 2023 pending appeal. The trial court had declared Plot No. 46B Kiamutugu to belong to Christian Foundation Fellowship, ordered the appellants' eviction within six months, declared the transfer of Baragwe/Thumaita/3304 to Christian Worship International Ministry null and void, directed re-registration in favour of Christian Foundation Fellowship through its trustee, and ordered cancellation of entries Nos. 4 to 7 in the register for Baragwe/Guama/2899. The appellants, in occupation since 2014, argued execution would render the appeal nugatory. The respondents countered that execution had already commenced, the application was a delay tactic, and the appellants had neither demonstrated substantial loss nor offered security. The court framed two issues: whether the conditions for stay were satisfied and costs. It found the application filed without unreasonable delay; that the decree, being declaratory, eviction and rectification in nature, would fundamentally alter the legal and factual status of the properties and cause substantial loss; and that the application was not overtaken by events since execution was not shown to have been completed before the interim orders. Although no security was proposed, the court imposed Kshs.200,000 as security. The court conditionally allowed the application, with costs of the application abiding the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the appellants have satisfied the conditions for the grant of an order of stay of execution pending appeal.
  2. 2.Who pays the costs?

Key legal issues

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01

Delay in filing the stay application

Holding

An application lodged approximately two weeks after judgment was filed without unreasonable delay.

Reasoning

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.

p. 4
02

Substantial loss where the decree is declaratory, eviction and rectification orders

Holding

Execution before the appeal would fundamentally alter both the legal and factual status of the suit properties, exposing the appellants to substantial loss.

Reasoning

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.

p. 5
03

Whether the application was overtaken by events

Holding

Payment of decree registration fees alone did not show execution had been completed; the interim stay preserved the position.

Reasoning

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.

p. 5
04

Security for due performance of the decree

Holding

The court may fix security of its own motion; Kshs.200,000 was imposed as a condition for the stay.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs of the application shall abide the outcome of the appeal.

The bench

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

majority

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

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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:
p. 6disposition
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.
p. 6final orders - stay 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.
p. 6final orders - security condition
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.
p. 6final orders - default clause
Costs of the application shall abide the outcome of the appeal.
p. 6final orders - costs
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.
p. 6balancing rights of successful litigant against preservation of appeal

Issues in the judgment

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minor

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.

minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.