Kihara v Gituma t/a Dona Snacks & 2 others (Environment and Land Case 1190 of 2013) [2026] KEELC 5213 (KLR)
The bottom line
#The Environment and Land Court paused collection of a Kshs. 5.9 million judgment pending appeal, but only because the losing party agreed to secure the full amount 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 1st Defendant has demonstrated that the orders of stay of execution pending appeal are merited.
- 2.Who should bear the costs of the application?
Key legal issues
#Substantial loss
Substantial loss was established because the Respondent gave no evidence of means to refund the decretal sum despite the Applicant's reasonable fear.
The Applicant bears the onus of proving substantial loss, but where a reasonable fear is raised that a monetary decree cannot be refunded, the evidential burden shifts to the Respondent. The Respondent merely asserted ability to repay without an affidavit of means or evidence of financial capacity, so the Court found the Applicant likely to suffer substantial loss if the stay were denied.
Unreasonable delay
A delay of 1 year and 5 months was not inordinate because the application was precipitated by the taxation ruling of 25/2/2026 and the imminent execution.
The Court accepted that what constitutes inordinate delay is case-specific. Judgment was delivered in October 2024 and the application filed on 31/3/2026, but the Party and Party Bill was only taxed on 25/2/2026, precipitating the application. The delay was therefore sufficiently explained and not inordinate or inexcusable.
Security for due performance
The Applicant's offer of a bank gauge satisfied the security condition; the form and terms of security are for the Court to determine.
Security is discretionary and the Court sets its terms. An offer to provide security is a mark of good faith and suffices to satisfy the ground. The Applicant offered a bank guarantee, so the Court conditioned the stay on furnishing security for the full cumulative decretal amount of Kshs. 5,925,255 within 30 days, failing which the stay lapses.
Legal principles established
#- An appeal does not automatically stay execution; the applicant must satisfy the conditions in Order 42 rule 6(2) - substantial loss, no unreasonable delay, and security.
- Once an applicant raises a reasonable fear that a respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to show his ability to repay.
- Where a respondent asserting ability to repay gives no evidence of financial capacity, substantial loss is taken to be established.
Court orders
#- 1.A stay of execution of the Judgment delivered on 29/10/2024 is granted pending the hearing and determination of the appeal Nairobi COACA/E087/2025, on condition that the Applicant provides security for Kshs. 5,925,255/= in the form of either a bank guarantee or the said sum deposited in a joint account in the name of the parties' Advocates within 30 days
- 2.In default of providing the security, the orders for stay shall automatically lapse
- 3.Each party to bear his/her own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 42 Rule 6(1) & (2) and Order 51 Rule 1 & 2 of the Civil Procedure Rules, 2010
Relief refused
#Costs of the application
The Court ordered each party to bear their own costs rather than awarding costs to either party
Costs
Each party to bear his/her own costs.
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.
A stay of execution of the Judgment delivered on 29/10/2024 is hereby issued pending the hearing and determination of the appeal is hereby granted on the following conditions:
The Applicant does provide security for the sum of Kshs. 5,925,255/= in the form of either a bank guarantee or the said sum deposited in a joint account in the name of the parties' Advocates within 30 days hereof.
That in default of (i) above, the orders for stay shall automatically lapse.
Each party to bear his/her own costs.
In the absence of such evidence, the Court finds that the Applicant is likely to sufier substantial loss if orders of stay are not granted.
It is the Court’s finding that the Applicant has suficiently explained the reasons for the delay and that the delay was not inordinate.
Issues in the judgment
#The judgment states the judgment was delivered on 29/10/2024 in one passage but refers to delivery on 19/10/2024 when computing delay
Gender references to the Applicant are inconsistent (she/her and it/the Defendant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihara v Gituma t/a Dona Snacks & 2 others (Environment and Land Case 1190 of 2013) [2026] KEELC 5213 (KLR)", Case Analysis (2026). Not stated in the judgment (ruling in respect of the 1st Defendant's application dated 30/3/2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5213/eng@2026-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.