https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1548

Corner Place Investment Limited v Kirima & 3 others (Civil Appeal (Application) E105 of 2026) [2026] KECA 1548 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1548 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E105 of 2026 LK Kimaru, M Sila & JO Okello, JJA July 31, 2026 Between Corner Place Investment Limited Appellant and Teresia Wairimu Kirima 1st Respondent Nairobi City County Government 2nd Respondent Chief Land Registrar 3rd Respondent Ministry of Lands, Housing & Urban Development 4th Respondent (Being an appeal from the judgment and decree of the Environment and Land Court at Nairobi, (L. Mbugua, J.) delivered on 13 July 2023,in____ ELC Petition No. 45 of 2017) Ruling 1.The application before this court is that dated 12th May 2026 filed by the appellant, brought inter alia under Rule 5 (2) (b) of the Court of Appeal Rules, 2022. It seeks stay of execution of the judgment delivered on 13th July 2023 in the suit Nairobi ELC Petition No. 45 of 2017, Teresia Wairimu vs Corner Place Investments Limited & 3 Others. In that suit, the 1st respondent herein, Teresia Wairimu Kirima, as administrator of the Estate of the late Gerishon Kamau Kirima, had sued the applicant, the Nairobi City County Government, the Chief Land Registrar, and the Ministry of Lands, Housing and Urban Development, over the parcel LR No. 209/11092/16, IR No. 75352, located in City Park Estate, Nairobi (the suit property). It was the case of the 1st respondent, that the late Gerishon Kamau Kirima (hereinafter referred to simply as ‘the late Kirima’) was the rightful proprietor of the suit property, holding a leasehold title issued on 1st November 1981 for a period of 99 years, and that a parallel title held by the applicant was fraudulent. On the other hand, the applicant asserted that it was the rightful proprietor, having innocently purchased the same from a third party who was reflected as proprietor in the register of the suit property. 2.Upon hearing the suit, the trial court held that it was the title of the late Kirima which was genuine. The trial court proceeded to nullify the title of the applicant, and ordered the Chief Land Registrar to rectify the register, by registering the Estate of the late Kirima as proprietor. In addition, the applicant was restrained from interfering with the 1st respondent’s occupation of the suit property and was ordered to pay general damages in the sum of Kshs. 5,000,000/=, plus costs of the suit. Aggrieved,the applicant has preferred an appeal to this Court and now seeks stay pending the hearing of that appeal. 3.In the supporting affidavit, sworn by Abdirizak Ibrahim, a director of the applicant, it is deposed that the 1st respondent is in the process of disposing the suit properties which will make it impossible for the applicant to recover the same in the event that the appeal succeeds. It is further deposed that the 1st respondent has leased out the property to third parties, who have constructed structures and are currently operating businesses therein, despite the pendency of the appeal. He contends that the applicant has an arguable appeal as the trial judge fell into error by inter alia finding that the suit land vests in the Estate of the late Kirima, and failing to find that the applicant was a bona fide purchaser for value without notice. 4.The 1st respondent swore a replying affidavit to oppose the motion on the grounds inter alia that the applicant has moved the court nearly three years after delivery of the judgment; that she has been in occupation of the property since 1996; that the property is an immovable asset which will remain where it is; that the land registry records can be rectified; that the third party occupants who are running businesses on the suit property have been there long before the proceedings were commenced; and that their occupation does not alter the permanent nature of the land. She contends that the application was only triggered after the costs in the originating case were taxed and a formal demand for payment made. 5.The application was urged before us by way of written submissions and oral highlights. Mr. Wafula, learned counsel, appeared for the applicant, whereas Mr. Muuo, learned counsel, appeared for the 1st respondent. The 2nd – 4th respondents, respectively, the Nairobi City County Government, the Chief Land Registrar, and the Ministry of Lands, Housing & Urban Development, did not participate in the application nor were they represented at the hearing of the same. However, they were served by Court with the hearing notice. Counsel more or less emphasised the positions of their respective clients as spelt out in the affidavits in support of the motion and in reply to the motion which we have taken into consideration. 6.The principles that apply in an application of this nature are well settled. An applicant needs to demonstrate that he has an arguable appeal, and that if stay is not granted, the appeal may be rendered nugatory (See case of Kinyanjui v Ketter & 5 others (Civil Application 31 of 2013) [2013] KECA 378 (KLR) (22 February 2013) (Ruling)). We have these principles in mind when addressing ourselves to this application. 7.At the outset, we observe that both parties appear to have held title to the suit property and the main issue at trial was who held the genuine title. The trial court upheld the title of the late Kirima while nullifying that of the applicant. The applicant asserted before the trial court, and here before us, that it is a bona fide purchaser for value and that its title is the lawful one. Having procured a title in its name, and which title appears on the face of it to be genuine, we are persuaded that the applicant has an arguable appeal. On the nugatory aspect, we are also persuaded that if the 1st respondent proceeds to sell, charge, or otherwise adversely deal with the suit property, then the same may be forever lost, and if the applicant succeeds on appeal, that may end up being a pyrrhic victory. Mr. Muuo, in his submissions, did assert that if stay is to be granted, then the applicant needs to offer security, at least in the sum of the taxed costs of Kshs. 750,000/=. Mr. Wafula did not have instructions from the applicant in this regard. 8.Rule 5 (2) (b) of the Rules of this Court, permit the court to “order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just” (emphasis ours). Thus, when considering an application under Rule 5 (2) (b), the court has discretion to give an order of stay subject to conditions. In the case herein, we are alive to the fact that among the orders made in the decree in favour of the 1st respondent was a monetary award of Kshs. 5,000,000/= in damages. In those circumstances, we do not think that it is unreasonable for the 1st respondent to request that stay be subject to conditions on deposit of some money. 9.In our discretion, and bearing the foregoing in mind, we order as follows:That subject to the applicant depositing the sum of Kshs. 750,000/=, either in court or in a joint interest earning account, within the next 30 days, there shall issue a stay of execution of the decree in Nairobi (Milimani) ELC Petition No. 45 of 2017, pending hearing and determination of the appeal herein, in the following terms:1.That the status quo regarding the documentation held at the Land Registry be maintained.2.That no party shall sell, charge, or adversely deal with the suit property.3.That the status quo regarding possession, and use of the land be maintained. For avoidance of doubt, it is the 1st respondent in possession of the suit property, and has allowed third parties to use the said property to operate various businesses.4.That no further structures be erected in the suit property. 10.Finally, the costs of the application will abide the appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.L. KIMARUJUDGE OF APPEAL........................................MUNYAO SILAJUDGE OF APPEAL........................................DR. J.O OKELLOJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR