Peter Kariuki Nderitu v Gerald Kihara Waithaka
The bottom line
#A Kenyan court refused to pause execution of a judgment because the appeal was filed late without permission and the conditions for a stay were not met.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal uploaded within time but whose filing fees were paid nearly two months later, without prior extension of time or leave of Court, is competent and properly before the Court to sustain an application for stay of execution.
- 2.Whether, assuming the appeal is competent, the Applicant has satisfied the statutory conditions for the grant of a stay of execution pending appeal, namely demonstrating substantial loss, absence of unreasonable delay, and the provision of security for the due performance of the decree.
Key legal issues
#Competence of the underlying appeal where filing fees were paid late without leave
The appeal was incompetent: the Memorandum of Appeal was only 'filed' on 4/03/2026 when fees were paid, long after the statutory timeline expired, and no extension of time or leave had been obtained.
The court held appellate jurisdiction is strictly statutory and a valid competent appeal is a condition precedent to discretion under Order 42 Rule 6. Relying on Salat v IEBC, filing is a composite act of presentation, assessment and payment of fees; the memorandum was therefore only recognized in law on 4/03/2026, out of time without leave.
Whether substantial loss was established
Not established. Bare assertions of potential loss and a Notice to Show Cause do not amount to substantial loss in a money decree.
The court applied Butt v Rent Restriction Tribunal and National Industrial Credit Bank v Aquila Holdings: execution of a money decree is not per se substantial loss; the applicant must prove the decree-holder is a person of no means incapable of refunding. The Respondent deponed he was a businessman of means with identifiable assets.
Whether the application was brought without unreasonable delay
It was not: there was an unexplained delay of over five months from judgment until the application, with no steps taken until execution proceedings were initiated.
Judgment was delivered on 5/12/2025 but the applicant took no steps to pay fees or activate the stay application until execution proceedings began in March 2026; the application was dated 14/05/2026. The court applied Global Tours and Travels on expeditiousness and weighing pros and cons.
Whether security for the due performance of the decree was offered
No tangible security was offered; a generic willingness to abide by court terms is insufficient.
Under Order 42 Rule 6(2)(b) the applicant must give security as ordered. The applicant merely stated willingness to comply with any reasonable conditions without proposing concrete security. The court applied Arun C. Sharma v Kenya Commercial Bank on the need for concrete security.
Legal principles established
#- A document is not filed in court until the requisite filing fees are paid; filing is a composite act of presentation, assessment and payment.
- An appeal filed out of time without leave is incompetent, and all collateral applications premised on it must fail.
- Execution of a money decree does not per se constitute substantial loss; the applicant must demonstrate the financial indigence of the decree-holder.
Court orders
#- 1.The Applicant's Notice of Motion dated 14/05/2026 be and is hereby dismissed.
- 2.The interim orders of stay of execution, if any, granted or existing prior to this Ruling are hereby vacated.
- 3.The costs of this Application are awarded to the Respondent.
- 4.Mention for disposal of Appeal on 14/10/2026.
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 E206 OF 2024
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court under the ELC Act read with Order 42 rule 6 of the Civil Procedure Rules, 2010 and Sections 1A, 1B & 3A of the Civil Procedure Act
Relief refused
#Stay of execution of the Ruiru judgment and decree pending the hearing and determination of the Application and of the Appeal
The underlying appeal was incompetent, having been filed out of time without leave, and in any event the Applicant failed to establish substantial loss, absence of unreasonable delay and security under Order 42 Rule 6(2)
Costs
The costs of this Application are awarded to the Respondent.
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 document presented to the registry without payment of the requisite Court fees, where fees are payable, is not a document filed in Court until such fees are paid.
Deviations from statutory time-lines should not be treated lightly. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court
rules of Court fixing time limits are made to be observed, and where an appeal is incompetent for being out of time without leave, all collateral applications premised on that dead proceeding must fail.
a) The Applicant's Notice of Motion dated 14/05/2026 be and is hereby dismissed.
b) The interim orders of stay of execution, if any, granted or existing prior to this Ruling are hereby vacated.
Issues in the judgment
#Case number dated 2026 with judgment in 2026 but appeal from a 2024 magistrate suit; dates internally consistent but the caption 'ELCLA E029 OF 2026' is unusual for a filing within the appeal window
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kariuki Nderitu v Gerald Kihara Waithaka", Case Analysis (2026). ELCLA E029 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6000/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.