[2025] KEELC 3725 (KLR)

[2025] KEELC 3725 (KLR)

The court found that, given the pending appeal and the plaintiff's indication that there was no intention to evict the 2nd defendant until the appeal is determined, it was appropriate to grant a conditional stay of execution. The stay was made subject to the 2nd defendant depositing Kshs. 100,000 as security for due...

Source-derived case information.

Citation
[2025] KEELC 3725 (KLR)
Parties
Plaintiff: Juma Mohamed Mwachihi; Defendant: Samuel Hezron Kamunya; Defendant: Samuel Mwangi Mburu; Defendant: Cyrus Gichoi Rituga; Defendant: Patrick Mathenge Mbuthia; Defendant: Solomon Wao Odhiambo; Defendant: Ruthy Mugure Kariuki; Defendant: Elizabeth Wanjiru Maina; Defendant: Rose Akinyi Olewe; Defendant: Nancy Nthambi Kariuki
Court
Environment and Land Court
Court Station
Environment and Land Court at Mombasa
Jurisdiction
Kenya
Case Number
Environment & Land Case 5 of 2018
Procedural Posture
Stay Application / Ruling on Interlocutory Applications for Stay of Execution and Police Assistance
Outcome
Conditional stay of execution granted; security for due performance ordered; costs awarded to plaintiff.
Judges
YM Angima
Legal Topics
Stay of Execution, Security for Due Performance, Appeal Pending, Eviction Orders, Costs Award
Source Language
en
Civil Procedure Land and Property Stay of Execution Security for Due Performance Appeal Pending Eviction Orders Costs Award

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Parties

Juma Mohamed Mwachihi

Plaintiff

Samuel Hezron Kamunya

Defendant

Samuel Mwangi Mburu

Defendant

Cyrus Gichoi Rituga

Defendant

Patrick Mathenge Mbuthia

Defendant

Solomon Wao Odhiambo

Defendant

Ruthy Mugure Kariuki

Defendant

Elizabeth Wanjiru Maina

Defendant

Rose Akinyi Olewe

Defendant

Nancy Nthambi Kariuki

Defendant

Procedural Posture

Stay Application / Ruling on Interlocutory Applications for Stay of Execution and Police Assistance

Legal Issues

  1. 1 Whether a stay of execution of the decree pending appeal should be granted.
  2. 2 Whether the 2nd defendant should be required to provide security for due performance of the decree.
  3. 3 Whether the plaintiff is entitled to costs of the applications.

Ratio Decidendi

The court found that, given the pending appeal and the plaintiff's indication that there was no intention to evict the 2nd defendant until the appeal is determined, it was appropriate to grant a conditional stay of execution. The stay was made subject to the 2nd defendant depositing Kshs. 100,000 as security for due performance of the decree within 30 days. The court exercised its discretion under Order 42 Rule 6 of the Civil Procedure Rules, balancing the interests of both parties and ensuring that the appeal would not be rendered nugatory while also safeguarding the plaintiff's right to the fruits of the judgment. The plaintiff was awarded costs of the applications.

Court Disposition

Conditional stay of execution granted; security for due performance ordered; costs awarded to plaintiff.

Orders

  • There shall be a stay of execution of the decree dated 20.01.2022 for a period of 2 years from the date hereof or until the hearing and determination of Mombasa Civil Appeal No. E238 of 2024, whichever comes first.
  • The 2nd defendant shall deposit in court a sum of Kshs. 100,000.00 as security for due performance of the decree within 30 days from the date hereof as a condition for stay.