Ndungu & another v Nyairo (Environment and Land Appeal E019 of 2026) [2026] KEELC 5233 (KLR)
The bottom line
#A Kenyan court refused to pause execution of a judgment because the applicant showed no real loss and offered no security.
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 for grant of stay of execution pending appeal is merited
Key legal issues
#Whether the applicant established substantial loss
No substantial loss established; the injunction was to rectify the unlawful distress for rent carried out by the appellants in their individual capacity
The court noted that the appellants argued the estate would suffer loss, yet the suit concerned the appellants individually for an unlawful distress for rent. The injunctive orders were meant to prevent disposal of goods taken from the respondent. Execution of a lawful decree does not amount to substantial loss.
Whether the application was made without undue delay
Filed timely - judgment delivered 26th January 2026, application filed 12th February 2026
The court found the application was filed timeously, satisfying the delay limb, but this alone was insufficient as all conditions must be met conjunctively.
Whether security for due performance of the decree was furnished
No security offered; Order 42 Rule 6(2)(b) is mandatory
Security under Order 42 Rule 6(2)(b) is couched in mandatory terms and guarantees due performance of the decree. The applicant offered none, failing a conjunctive condition.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay of execution pending appeal
- Execution of a lawful decree does not automatically amount to substantial loss; a successful litigant is entitled to the fruits of his judgment
- The three conditions for granting stay of execution pending appeal are conjunctive, not disjunctive
Court orders
#- 1.The Notice of Motion application dated 12th February 2026 is dismissed for lack of merit
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELC division)
- MCELC E190 OF 2025
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (appeal from subordinate court under the Magistrates' Court Act jurisdiction of the ELC)
- Consolidated with
- MCELC E190 OF 2025 consolidated with MCELC E188, E450, E451, E452, E456, E457, E489 all of 2025
Relief refused
#Stay of execution of the judgment and decree in MCELC E190 OF 2025 pending appeal
Applicants failed to demonstrate substantial loss and failed to furnish security; the three conditions are conjunctive
Costs
No order as to 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.
The three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive.
Substantial loss is the cornerstone of an application for stay.
A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause.
The Notice of Motion application dated 12th February 2026 lacks merit is hereby dismissed.
No order as to costs.
Issues in the judgment
#The introductory paragraph dates the application 11th February 2026 while the final orders dismiss an application dated 12th February 2026
Judgment date of 28th January 2026 is given in the application but the ruling states judgment was delivered on 26th January 2026
Dated, signed and delivered on 6th August 2026, several months after the events of February 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu & another v Nyairo (Environment and Land Appeal E019 of 2026) [2026] KEELC 5233 (KLR)", Case Analysis (2026). ELCLA E019 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5233/eng@2026-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.