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ELCPartially AllowedELC Appeal (from MCELC/E177/2023)

Njenga Karume Trust Registered Trustees v Opondo & 4 others (Environment and Land Appeal E281 of 2025) [2026] KEELC 4553 (KLR)

Environment and Land Court
15 July 2026
2,937 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 execution of a Kshs. 15 million judgment, but only because the appellant agreed to deposit that amount as security within 30 days.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (Kullow J) on a Notice of Motion dated 19 December 2025 by the Applicant/Appellant, who had appealed against a ruling of the subordinate court in garnishee proceedings (MCELC/E177/2023) upholding an ex parte Order Nisi of 25 November 2025 attaching funds held by the garnishee bank. The Applicant sought interim and pending-appeal injunctions and stay of the Order Nisi, contending non-disclosure of material facts in obtaining the Order Nisi and that a prior ruling of 18 November 2024 had absolved it of substantive liability under the doctrine of privity of contract, since it was a separate estate administrator from the judgment debtor. The 1st Respondent opposed, arguing garnishee proceedings operate by force of law irrespective of privity, that the Applicant had acknowledged the debt and made partial payments, and that she owned valuable Karen real estate capable of refunding the decretal sum. Framing a single issue - whether stay of execution pending appeal was merited - the court applied Order 42 Rule 6(2): delay was absent (application filed same day); substantial loss was not established as claims about trust beneficiaries, payroll and creditors were unsubstantiated; but the appeal was arguable. Balancing the parties' rights, the court exercised its discretion conditionally, granting a stay on deposit of Kshs. 15,000,000/= in a joint interest-earning account within 30 days, failing which the stay lapses, with status quo remaining and costs of the application abiding the appeal. The application was allowed on those terms.

Questions the Court framed

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

  1. 1.Whether the application for grant of stay of execution is merited

Key legal issues

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01

Whether the Applicant demonstrated substantial loss

Holding

Not established; allegations of harm to trust beneficiaries and payroll were unsubstantiated

Reasoning

The Applicant argued execution would affect other trust beneficiaries, payroll, creditors and statutory obligations, but produced no documentary evidence such as vouchers or creditor lists. Generalized allegations do not establish actual substantial loss, and execution of a lawful decree does not per se amount to substantial loss.

p. 4
02

Whether the application was made without unreasonable delay

Holding

Yes - filed the same day as the ruling

Reasoning

The application was filed on the same date as the impugned ruling, so no unreasonable delay was shown; this limb of Order 42 Rule 6(2) was satisfied.

p. 5
03

Whether security for due performance was required

Holding

Yes - Kshs. 15,000,000/= in a joint interest-earning account as condition precedent to the stay

Reasoning

Order 42 Rule 6(2)(b) is mandatory; the purpose of security is to guarantee due performance of the decree, not to punish. The Applicant was willing to give conditions but made no concrete proposal, so the court fixed Kshs. 15,000,000/= as appropriate security, failing which the stay lapses.

p. 5
04

Whether the intended appeal is arguable

Holding

Yes - the memorandum of appeal raises weighty issues of law and fact

Reasoning

A cursory look at the Memorandum of Appeal showed it revolves around weighty issues of law and facts; arguability does not require the appeal to succeed, only at least one bona fide ground deserving judicial consideration, and prima facie prospects of success are relevant.

p. 6

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution
  • Execution of a lawfully given decree does not automatically amount to substantial loss; a successful litigant is entitled to the fruits of judgment
  • Arguability requires only one bona fide ground deserving consideration

Court orders

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  1. 1.There shall be a stay of execution of the ruling dated 19th December 2025 pending hearing and determination of the appeal.
  2. 2.The stay is conditional upon the Applicant depositing a sum of Kshs. 15,000,000/= in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days from the date of this ruling, in default the stay shall automatically lapse and the 1st Respondent is at liberty to execute.
  3. 3.The Applicant status quo remains.
  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.

Wrote the judgment

On appeal from
Magistrates' Court (MCELC/E177/2023: Jennifer Opondo vs Albert Njenga Karume & Anor.)
MCELC/E177/2023
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (stay of execution pending appeal)

Relief refused

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Unconditional stay

Substantial loss not demonstrated; stay granted only conditionally on security

p. 5

Costs

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

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.

There shall be a stay of execution of the ruling dated 19th December 2025 pending hearing and determination of the appeal.
p. 6final orders - stay granted
The stay is conditional upon the Applicant depositing a sum of Kshs. 15,000,000/= in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days from the date of this ruling, in default the stay shall automatically lapse and the 1st Respondent is at liberty to execute.
p. 6final orders - conditional security
Costs of the application shall abide the outcome of the appeal.
p. 6final orders - costs
Substantial loss is the cornerstone of an application for stay.
p. 4substantial loss principle
The principle that execution of a lawful given decree does not automatically amount to substantial loss would be applicable here .A successful litigant is entitled to enjoy the fruits of his judgment.
p. 4fruits of judgment

Issues in the judgment

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minor

The year of the lower court case number is inconsistent within the judgment - E177/2023 in the motion but E177/2013 in the supporting affidavit recital

minor

The court allowed the stay application despite finding substantial loss was not established, and granted an unlimited-stay order ('status quo remains') whose terms are vague

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njenga Karume Trust Registered Trustees v Opondo & 4 others (Environment and Land Appeal E281 of 2025) [2026] KEELC 4553 (KLR)", Case Analysis (2026). ELC Appeal (from MCELC/E177/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4553/eng@2026-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.