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ELCAllowedEnvironment and Land Appeal E059 of 2026

Kaberia v Kirathi & another

Environment and Land Court
24 September 2026
1,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Meru court paused an eviction order, letting the landowner stay on her property while her appeal is heard, if she deposits Kshs. 200,000 as security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (B M Eboso, J) on a notice of motion dated 9/6/2026 in which the appellant, Tirisia Muthaicu Kaberia, sought a stay of execution of the judgment of the Senior Resident Magistrate's Court at Maua delivered on 13/5/2026 in Maua CMC E & L Case No 225 of 2019. The trial court had dismissed her primary suit, allowed the 2nd respondent's counterclaim, and ordered her to vacate land parcel Njia/Kiegoi/943 within 90 days, failing which eviction would ensue. The appellant, apprehensive that the 90-day timeline would lapse and render her appeal nugatory, contended she had heavily invested in the land through miraa and trees and a semi-permanent house. The 2nd respondent opposed, arguing she had not met Order 42 rule 6(2) requirements and that any loss could be compensated by damages. The court framed a single issue: whether the criteria for stay pending appeal were met. Applying Order 42 rule 6(2) and the Court of Appeal principles in Butt v Rent Restriction Tribunal and Absalom Dova v Tarbo Transporters, the court found substantial loss demonstrated given her long occupation and developments, no inordinate delay (application filed about a month after judgment), and willingness to furnish security. The application was allowed conditionally: upon deposit of Kshs. 200,000 in court within 30 days, execution of the Maua judgment and decree is stayed; the stay lapses after 9 months; costs of the application are in 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 criteria for granting an order of stay of execution pending the hearing and disposal of an appeal by this court has been met

Key legal issues

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01

Whether the applicant demonstrated substantial loss

Holding

The court found substantial loss demonstrated on the basis of over ten years' occupation and significant developments on the land.

Reasoning

The applicant claimed continuous occupation for over ten years with developments including miraa, trees and a semi-permanent house. The impugned judgment required her to deliver vacant possession within 90 days, failing which eviction would ensue. The court found that eviction would uproot her developments, satisfying the substantial loss threshold under Order 42 rule 6(2).

02

Whether the application was filed without unreasonable delay

Holding

The court found no inordinate delay; the application was filed about a month after the impugned judgment.

Reasoning

The impugned judgment was rendered on 13/5/2026 and the application filed on 9/6/2026. The court treated this interval as reasonable, satisfying the delay limb of Order 42 rule 6(2).

p. 3
03

Whether security should be provided and in what form

Holding

Conditional stay granted upon deposit of Kshs. 200,000 in court within 30 days.

Reasoning

The purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor. The appellant expressed willingness to provide security as directed, and the court fixed Kshs. 200,000 as the security for the conditional stay.

p. 3

Legal principles established

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  • Stay of execution pending appeal requires demonstration of substantial loss, absence of unreasonable delay, and security for due performance of the decree.
  • In granting or refusing stay, the court balances the appellant's right of appeal against the respondent's right to enjoy the fruits of judgment.

Court orders

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  1. 1.Subject to the appellant depositing in court Kshs. 200,000 as security within 30 days, there shall be a stay of execution of the judgment and decree in Maua CMC E & L Case No 225 of 2019
  2. 2.The stay order shall lapse upon expiry of 9 months from the date of the ruling
  3. 3.Costs of the application shall be in 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
Senior Resident Magistrate Court at Maua
Maua CMC E & L Case No 225 of 2019
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (first appellate court's jurisdiction to grant stay of execution pending 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.

Subject to the appellant depositing in court Kshs. 200,000 as security within 30 days, there shall be a stay of execution of the judgment and decree in Maua CMC E & L Case No 225 of 2019.
p. 3final orders - conditional stay granted
the court is required to carefully balance the appellant’s right of appeal against the respondent’s right to enjoy the fruits of his judgment.
p. 3balancing test for stay of execution
The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court
p. 2purpose of stay relief (quoting Absalom Dova v Tarbo Transporters)
the court comes to the conclusion that this is a matter where conditional stay should be granted.
p. 3conclusion - conditional stay

Issues in the judgment

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minor

Gender of appellant inconsistently stated within the judgment.

minor

Quoted rule text garbled with duplicated subrule numbering.

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, "Kaberia v Kirathi & another", Case Analysis (2026). Environment and Land Appeal E059 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5964/eng@2026-09-24

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