https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3471

Kahiga & another v Kinuthia (Environment and Land Appeal E245 of 2025) [2026] KEELC 3471 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3471 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E245 of 2025 JG Kemei, J June 4, 2026 Between Elijah Kahiga 1st Applicant Nancy Gathoni Kahiga 2nd Applicant and William Njenga Kinuthia Respondent (In respect of the Applicant's Application dated 26/11/25) Ruling 1.What is before the Court is the Applicant's application dated 26/11/25, seeking orders to stay the execution of the judgement issued in CMELC NO 9015 of 2018 on 23/10/25, pending the hearing and determination of the Appellants' appeal, and further that a temporary injunction be issued restraining the Respondent from putting up any structures on the suit property, there being no existing structure, contrary to his testimony before the trial Court that he had constructed one on 13/4/2011. 2.It is further averred by the Applicants that there is an arguable appeal; that the appeal has been filed in time; that the Appellants will be prejudiced unless the orders are granted; and that the appeal would be rendered nugatory unless allowed. There is also apprehension that the Respondent may proceed to execute the judgment before the appeal is heard and determined by removing the foundation erected on the ground, thereby defeating the substratum of the appeal. 3.The application is contested by the replying affidavit sworn by Joseph Kinuthia Gatheca on 18/11/25, in which he stated that there is no evidence demonstrating the risk of execution of the decree and that the application is premature and unwarranted. Furthermore, there is no evidence that the Applicants will suffer substantial loss if the orders are not granted. The Applicants have also failed to satisfy the mandatory requirements under Order 42 Rule 6 of the Civil Procedure Rules, and as such, they are not entitled to the orders sought. It was also asserted that the current appeal appears to be an attempt to hinder the Respondents from enjoying the fruits of the judgment, which was arrived at on merits. While acknowledging the necessity of bringing the litigation to an end, the Respondent highlighted the Appellants' delay in prosecuting the suit in the trial Court for over seven years, an issue they now seek to revisit in this appeal. 4.Parties elected to file and exchange written submissions, which I have read and considered. 5.The key issue for determination is whether the Applicants are entitled to the orders of stay of execution and/or a temporary injunction restraining the Respondent from putting up any structure on the suit land. 6.Stay of execution pending appeal is a discretionary power bestowed upon this Court by the law. The Court of Appeal in the case of Butt –vs- Rent Restriction Tribunal {1982} KLR 417 gave guidance on how a Court should exercise the said discretion and held that:“ 1.The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the Judge’s discretion. 3.A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings. 4.In exercising its discretion to grant or refuse an application for a stay, the Court will consider the special circumstances of the case and its unique requirements. In this case, the special circumstances were that a large amount of rent was in dispute and that the Appellant had an undoubted right of appeal. 5.The Court in exercising its powers under Order XLI rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 7.The principles upon which a stay of execution pending appeal can be allowed are now well settled, as set out in the authorities of this Court and the superior Courts. Generally, a stay of execution is provided for under Order 42 Rule 6(2) of the Civil Procedure Rules. 8.As for the Applicant having to suffer substantial loss, in the case of Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988)KAR 1018 the Court of Appeal pronounced itself to the effect that:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.” 9.The trial Court delivered its judgment on 23/10/25 in favour of the Respondent and being dissatisfied with the said judgment, the Appellants filed this appeal vide the memorandum of appeal dated 18/11/25; hence, the appeal was filed timeously. 10.On a substantial loss, the Applicants bear the burden of showing the substantial loss they are likely to suffer if no stay is ordered. This recognises that both parties have rights: the Appellants to their Appeal, including the prospect that it will not be rendered nugatory; and the decree holder to the decree, including the full benefits thereunder. In balancing the two competing rights, the Court focuses on their reconciliation, which is not a question of discrimination. {See the case of Absalom Dora –v-Turbo Transporters (2013) (eKLR)} 11.As F. Gikonyo J stated in Geoffrey Muriungi & another v John Rukunga M’imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased) [2016] eKLR and which wisdom I am persuaded with; -“…the undisputed purpose of stay pending appeal is to prevent a successful Appellant from becoming a holder of a barren result for reason that he cannot realize the fruits of his success in the appeal. I always refer to that eventuality as ‘’reducing the successful Appellant into a pious explorer in the judicial process’’. The said state of affairs is what is referred to as ‘’substantial loss’’ within the jurisprudence in the High Court, or ‘’rendering the appeal nugatory’’ within the juridical precincts of the Court of Appeal: and that is the loss which is sought to be prevented by an order for stay of execution pending appeal...” 12.In the circumstances of this case, it is evident that the Court's judgment, among other things, adjudicated the suit land in favour of the Respondent and issued a permanent injunction against the Appellant. Unless a stay is granted, there will be nothing to prevent the Respondent from removing or obstructing the Applicant's access to the suit land, potentially resulting in the transfer of the subject land before the hearing and final determination of the appeal. This scenario has the potential to change the state of the land before the appeal is heard and determined. 13.Regarding the last condition regarding the provision of security, I find that Order 42 Rule 6 (2) (b) of the Civil Procedure Rules stipulates in mandatory terms that the third condition a party must fulfil to be granted a stay order pending appeal is to furnish security. In the case of Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates & 4 Others (2014) Eklr, the Court held that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the Respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.” 14.In regard to this limb, I order the Applicant to provide security for the due performance of such decree or order as may be granted by the Court in the sum of Kenya Shillings Fifty Thousand Only [Kshs 50,000/-]. 15.I find no need to determine the orders for a temporary injunction, given that I have allowed the stay of execution in the matter. I arrive at an irresistible conclusion that this prayer is now moot, as it will not serve any useful purpose. 16.Final orders for disposalFor the above reasons, I will determine the instant application in the following terms:a.There be stay of execution of the judgment issued on 23/10/25 pending the hearing and determination of the appeal.b.The Applicant to deposit the sum of Kenya Shillings Fifty Thousand Only [Kshs 50,000/-] in Court as security in line with para 14 above within the next 30 days.c.The Appellants are directed to file the record of appeal in any event within the next 60 days; in default of b and c, the orders issued herein shall lapse.d.The costs of this application abide the outcome of the appeal. 17.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the Presence of:1. N/A for the Appellants2. Mr. Kariuki for the Respondent4. CA – Yvette/Kendi