https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3773

Gakuya v Gatuiku (Environment and Land Appeal E028 of 2023) [2026] KEELC 3773 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3773 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E028 of 2023 JA Mogeni, J June 16, 2026 Between Harrison Muhia Gakuya Appellant and Japheth Mwaniki Gatuiku Respondent Ruling 1.This Ruling is in respect of the Appellant’s dissatisfaction with Judgment delivered on 20/05/2025. The Appellant/Applicant one Harrison Muhia Gakuya has filed Notice of Motion under Order 22 Rule 22, Order 51 Rules 1 and 13 (2) of the Civil Procedure Rules Section 1A, 1B, 3 and 3A of the Civil Procedures Act, Cap 21 Laws of Kenya and all other enabling provisions of the law seeking the following:a.Spent.b.That there be a stay of execution of the Judgment delivered on 20/05/2025 pending filing of an Appeal at the Court of Appeal.c.That costs of this Application be awarded to the Respondents. 2.The grounds of the Application are based on the grounds on the face of it and supported by the Affidavit of the Applicant Harrison Muhia Gakuya sworn on 27/05/2025. The Applicant deposes that the Honourable Court recently delivered Judgment in the matter herein against him. Consequent upon the delivery of the said Judgment, the Applicant states that he has since filed a Notice of Appeal, and in that regard annexes and marks as "HMG 1" a copy of the face of the Notice of Appeal was filed, which forms part and parcel of this Affidavit. 3.The Applicant further avers that this Honourable Court be pleased to grant him an order for Stay of Execution of the said Judgment pending the hearing and determination of the Appeal he has duly lodged at the Court of Appeal. He depones that should the orders sought herein not be granted, the Respondent may proceed to register the parcel of land known as LR Block 5 (Kiamumbi) 528, thereby rendering the said Appeal nugatory and defeating the ends of justice. 4.The Application is opposed by the Respondent who swore a Replying Affidavit dated 27/07/2025 and he deposes that the Appellant/Applicant has failed to demonstrate to this Honourable Court any loss that they stand to suffer. Notably, the Appellant/Applicant has never been in occupation of the suit property, having sold the same to the Respondent. 5.Turning to the propriety of the application, the Respondent deposes that in an application seeking a stay of execution pending Appeal, there must exist a Memorandum of Appeal providing cogent evidence of sufficient cause for the grant of such stay. The Appellant/Applicant has conspicuously failed to provide any such Memorandum. 6.The Respondent further deposes that the present application is made in bad faith and constitutes an abuse of the Court process, being a calculated ploy to deny the Respondent the fruits of the Judgment. In this regard, the Respondent urges the Court to bear in mind the principle that justice delayed is justice denied. 7.On the issue of security, the Respondent deposes that the Appellant/Applicant has not furnished any security for the due performance of the Court Decree as may ultimately be binding upon him, which failure places the parties on unequal footing. Should this Honourable Court be inclined to grant the application for stay, the Respondent respectfully urges that the Appellant/Applicant be ordered to furnish sufficient security as a condition thereof, so as to ensure fairness to both parties and to preserve the Respondent's right to enjoy the fruits of the Judgment. 8.The Court on 15/07/2025 granted leave to the parties to canvass the Application by way of written submissions. However, when the parties appeared in Court on 22/01/20267 to confirm compliance, Ms Thuo holding brief for Mr Kimani informed the Court that they would just rely on their Replying Affidavit. However, when I scrutinized the Case Tracking System (CTS) I noted that the Appellant had filed written submissions dated 14/07/2025 and Respondent had filed written submissions dated 29/07/2025. 9.I have taken time to read through the submissions filed by the parties and the authorities cited. I have given due regard to the same as I write this Ruling. 10.The singular issue that falls for determination by this Honourable Court is whether the Appellant/Applicant, Harrison Muhia Gakuya, has satisfied the threshold set under Order 42 Rule 6 of the Civil Procedure Rules so as to warrant the grant of a stay of execution of the Judgment delivered on 20/05/2025, pending the lodging and hearing of an intended Appeal at the Court of Appeal. 11.Order 42 Rule 6 of the Civil Procedure Rules is the provision governing applications of this nature. It provides that no order for stay of execution shall be made unless the Court is satisfied, first, that substantial loss may result to the Applicant unless the order is made; second, that the application has been made without unreasonable delay; and third, that such security as the Court orders for the due performance of such Decree or order as may ultimately be binding on the Applicant has been given. These three conditions are conjunctive, not disjunctive, and an Applicant who fails to satisfy any one of them is not entitled to the relief sought. 12.The Court of Appeal has over the years affirmed and elaborated upon these conditions. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal set out the general principles governing the grant of a stay of execution. The Court held that the power to grant a stay is discretionary and that in exercising that discretion the Court must weigh the interests of both parties. The Court further held that the primary concern is whether the Appeal, if successful, would be rendered nugatory if a stay is not granted. It was also stated that the mere filing of an Appeal is not sufficient to warrant a stay and that the Applicant must demonstrate specific circumstances that would make it inequitable to allow execution to proceed. 13.In Trust Bank Limited & Another v Investech Bank Limited & 3 Others [2000] eKLR, the Court of Appeal reiterated that the conditions set out in Order 42 Rule 6 are not mere formalities but substantive requirements that must be satisfied before the discretion of the Court can be properly exercised in favour of a stay. The Court emphasized that security for the due performance of the Decree is an integral condition and that its absence, without satisfactory explanation, weighs heavily against the grant of a stay. 14.In the context of land disputes, this Court is also guided by the pronouncements of the Environment and Land Court. Maboko Distributors Ltd & 2 Others v Njahira (Environment and Land Appeal E039 of 2023) [2024] KEELC 4331., the Court held that where the subject matter of an Appeal involves land, the question of whether the Appeal would be rendered nugatory is of particular significance because land, being unique and irreplaceable, may in certain circumstances justify a stay. 15.However, this consideration does not displace the other requirements of Order 42 Rule 6 and an Applicant must still demonstrate substantial loss and must furnish the requisite security. 16.The Applicant deposes that should the stay not be granted, the Respondent may proceed to register the parcel of land known as LR Block 5 (Kiamumbi) 528 in his name, thereby rendering the intended Appeal nugatory. This Court does not lose sight of the principle, well settled in our jurisprudence, that where execution of a Decree would have the effect of defeating an Appeal and rendering it an academic exercise, that is a weighty consideration. However, the apprehension of nugatory action must be grounded in demonstrated facts and not mere conjecture. 17.The Respondent has sworn an Affidavit that the Applicant has at no material time been in occupation of the suit property, having himself sold the same to the Respondent. This is a significant averment that goes to the heart of the question of substantial loss. An Applicant who has parted with possession and beneficial interest in a property through a voluntary act of sale is not in the same position as one who risks being dispossessed of a property in which they have a subsisting and active interest. The Applicant has not controverted this averment, nor has he placed before this Court any material to demonstrate the nature and extent of the loss he would suffer over and above the ordinary consequences of an adverse Judgment. 18.The Court is therefore not satisfied that the Applicant has demonstrated substantial loss as required by Order 42 Rule 6(2). 19.The Judgment was delivered on 20/05/2025 and the Notice of Motion was sworn on 27/05/2025. On the face of it, the application was brought without unreasonable delay and this Court is satisfied on this limb alone. 20.The Respondent raises the objection that the Applicant has annexed only the face of the Notice of Appeal as exhibit "HMG 1" without exhibiting any Memorandum of Appeal. The Respondent contends that without a Memorandum of Appeal, there is no cogent evidence before the Court of the existence of an arguable Appeal with sufficient cause. 21.This Court is alive to the distinction between a Notice of Appeal and a Memorandum of Appeal. A Notice of Appeal signals an intention to Appeal; a Memorandum of Appeal articulates the grounds upon which the Appeal is founded. In an application for stay pending Appeal, while it is not invariably required that a Memorandum of Appeal be filed before the application can be entertained, the Court must nonetheless be able to satisfy itself that the intended Appeal raises substantive questions that merit determination. Where, as here, no Memorandum of Appeal has been filed and the Applicant has not even articulated the Grounds of Appeal in the Supporting Affidavit, this Court is left with nothing upon which it can assess the prospects of the Appeal or the seriousness of the challenge to the Judgment below. 22.Order 42 Rule 6(1) requires, as a condition for the grant of a stay, that the Applicant furnish such security as the Court orders for the due performance of the Decree or order. The Applicant has been entirely silent on this requirement. Neither the Notice of Motion nor the Supporting Affidavit addresses the question of security, and no offer of security has been made. The Respondent has rightly drawn the Court's attention to this lacuna and has urged that should the stay be granted, security ought to be imposed as a condition. 23.The absence of any proposal or offer of security is not a technical deficiency. It is a substantive failure. In RWW v EKW [2019] eKLR, the Court held that the requirement to furnish security is not a matter within the unfettered discretion of the Applicant to ignore and that an application that is entirely silent on security is materially deficient under Order 42 Rule 6. This Court is in full agreement with that position. 24.The Respondent further deposes that the application is made in bad faith and constitutes an abuse of the Court process, amounting to a calculated ploy to deny him the fruits of the Judgment. While this Court will not make a finding of bad faith on the basis of Affidavit evidence alone, it notes that the cumulative effect of the Applicant's failure to demonstrate substantial loss, failure to exhibit a Memorandum of Appeal, and complete silence on security does lend credence to the Respondent's concern that the application is not bona fide. The Courts of this jurisdiction have consistently held that a successful litigant has a prima facie right to the fruits of their Judgment and that this right ought not to be lightly interfered with. As was stated by the Court of Appeal in National Industrial Credit Bank Ltd vs. Aquinans Francis Wasike & Another [2005] eKLR (Civil Application No. 238 of 2005), which is often referenced in subsequent High Court Rulings to this effect, such as in Kabugua v Mwatata & Another (Civil Appeal 1 of 2021) and in [2021] eKLR by Justice Odunga:“This Court has said before and it would bear repeating... The Court must be wary of applications that, under the guise of preserving the right of Appeal, are in reality designed to prolong litigation and withhold from the Decree-holder what is rightfully theirs." 25.In the final analysis I note that Harrison Muhia Gakuya, the Appellant/Applicant has failed to satisfy the conjunctive conditions prescribed under Order 42 Rule 6 of the Civil Procedure Rules. He has not demonstrated that substantial loss will result to him if the stay is not granted. He has placed before this Court no Memorandum of Appeal from which this Court may assess the merit and substance of the intended Appeal. He has made no offer whatsoever of security for the due performance of the Decree as may ultimately be binding upon him. 26.I therefore make the following orders:i.The Notice of Motion dated 26/05/2025 is hereby dismissed.ii.Cost of the Application are awarded to the RespondentOrders Accordingly. DELIVERED, DATED AND SIGNED THROUGH VIRTUAL COURT AT THIKA, THIS 16TH DAY OF JUNE 2026.……………………MOGENI J.JUDGEIn the presence of:-Mr. Muhia Harrison Gakuya - Appellant/Applicant present in personRespondent - AbsentMs. Lilian - Court Assistant……………………MOGENI J.JUDGE