Rufas Kihara Njoroge & Moureen Mugure Kihara (Suing as the Legal Representatives of Hellen Wanjiku Gathungu) v Naomi Wairimu Kamau, Jufras Investment Limited, Land Registrar Ruiru & The Hon. Attorney General
The bottom line
#A Kenyan court refused to pause a land judgment on appeal, confirming that appealing alone does not stop the winner from enforcing their decree.
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 Applicants demonstrated substantial loss if stay of execution is not granted
- 2.Whether the application was made without unreasonable delay
- 3.Whether security for the due performance of the decree has been furnished
- 4.Whether the Applicants are otherwise entitled to a stay of execution pending appeal
Key legal issues
#Substantial loss
Not established; the decree was injunctive and restorative, and the Applicants showed no irreversible prejudice
The court held that execution of a lawful decree does not amount to substantial loss. The Applicants had to show particular prejudice that could not be remedied if the appeal succeeded. Alleged payments and developments were contested matters for the appeal, and the 1st Respondent claimed she was already in possession, rendering the application partly overtaken by events.
Unreasonable delay
Delay of about four months accepted as not unreasonable in the circumstances
Judgment was delivered on 16 May 2025 and the application filed on 6 September 2025, a period of approximately four months. Although not filed immediately, the court was prepared to accept the delay had not been shown to be unreasonable on the facts disclosed.
Security for due performance of the decree
No security offered; however, the injunctive nature of the decree did not dispense with the requirement of substantial loss
Order 42 Rule 6(2)(b) requires security, and none was offered. The court noted the decree imposed no specific monetary obligation, but held that this did not by itself dispense with the statutory requirements of substantial loss and sufficient cause, which the Applicants had failed to establish.
Legal principles established
#- The three conditions for stay of execution pending appeal - substantial loss, timely filing and security - must all be satisfied before the discretionary jurisdiction is exercised
- Mere prospect of execution of a lawful decree, including an order for possession, does not of itself establish substantial loss
- An interlocutory stay application is not an occasion to re-evaluate the evidence or determine the merits of the appeal
Court orders
#- 1.The Notice of Motion dated 6 September 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Ruiru
- MCELC E075 of 2023
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#Stay of execution of the judgment and decree in MCELC E075 of 2023 pending appeal
Applicants failed to establish substantial loss, sufficient cause and security under Order 42 Rule 6(2)
Costs
The Notice of Motion dated 6 September 2025 is dismissed with costs (costs to the Respondents).
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.
Consequently, the Notice of Motion dated 6 September 2025 is hereby dismissed with costs.
Ultimately, the right of appeal does not, by itself, confer a right to stay execution.
The mere prospect of execution of a lawful decree, including the enforcement of an order for possession or removal of structures, does not in itself establish substantial loss.
These requirements are conjunctive in the sense that an Applicant must satisfy the Court on the statutory conditions before the discretionary jurisdiction to grant stay can properly be exercised.
Issues in the judgment
#Delivery date stated as 2026, inconsistent with 2025 case number and filing date
Parties referred to as Appellants/Applicants though the record shows an application within an appeal; heading omits 'Appellants'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rufas Kihara Njoroge & Moureen Mugure Kihara (Suing as the Legal Representatives of Hellen Wanjiku Gathungu) v Naomi Wairimu Kamau, Jufras Investment Limited, Land Registrar Ruiru & The Hon. Attorney General", Case Analysis (2026). ELCLA No. E066 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5768/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.