https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4364

Garissa Mattresses Ltd v Wamwandu & 5 others (Environment and Land Case 316 of 2014) [2026] KEELC 4364 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4364 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 316 of 2014 A Ombwayo, J July 13, 2026 Between Garissa Mattresses Limited Plaintiff and Margaret Walogwa Wamwandu & 5 others & 5 others & 5 others & 5 others Defendant Ruling 1.The defendants come to this court vide an amended notice of motion dated 26th of February2026 for Orders that pending the hearing and determination of the Appeal NO. E146 OF 2025, at Court of Appeal-at Mombasa, this Honourable Court to issue an order for stay of Execution of the Judgment in this case delivered on 7th November 2024 including entering, subdividing, evicting the Applicants and their families residing at the suit property known as Plot Number L.R No. 15/V/MN. Title No. CR 7556. That the land Registrar Mombasa County or any other officer in the Land Office or any other person of Title be restrained from registering any transfer, charge, lease or any other document in the suit o property known as Plot Number L.R No. 15/V/MN. Title No. CR 7556 pending hearing and determination of this Application filed herein and the Appeal No. E146 of 2025 at the Court of Appeal at Mombasa. That costs be provided for. 2.The application is be supported on the grounds that the court delivered its Judgment on 7th November 2024 in favour of the Plaintiff as against the Defendants. That the Defendants have already filed a Notice of an Appeal on 12th November 2024 thus commencing the Appeal at Court of Appeal Being Appeal No. E146 of 2025 at Mombasa. The said Applicant also sought for typed and certified copies of proceedings and judgment on 8th November 2024 for the purpose of preparing a Record of Appeal to the Court of Appeal. 3.The Applicants representing over 300 Households, schools and a church are in occupation and resides in the suit property known as Plot Number L.R No.CD 15/V/MN. Title No. CR 7556 since 1974 and have no other place to move out to and call home. 4.That unless stopped by an Order of this Honourable Court, the Applicants stands to suffer irreparably as they are going to lose all their investments build over time. That the Applicants have an arguable appeal with high chances of success and unless the stay is granted it will be rendered nugatory. That this Application has been filed timeously and the Applicants are willing to abide by any conditions set by Court for stay. That it is for the interest of justice and fairness that this Application be allowed. 5.The applicants submit that having now preferred their appeal in Civil Appeal No. 146 of 2025 at Mombasa, this Court should preserve the status quo so that the appellate process is not rendered a mere exercise. 6.The applicant contends that the Right of Appeal is a fundamental pillar of the Right to Fair Hearing under Article 50(1) of the Constitution. A litigant must not be "punished" or suffer irreversible prejudice before exhausting all appellate tiers available in law. The Respondent cannot "chest-thump" or assert an absolute, indefeasible right of ownership based on a trial court judgment that is currently subjudice. Until the appellate process is exhausted, the Respondent's rights remain conditional. As held in Kenya Shell Limited v Kibiru KLR 410, the court's discretion to grant a stay is intended to prevent a miscarriage of justice. To allow execution now would be to treat a contested decision as finality, thereby punishing the Applicants for exercising their legal rights. 7.The applicant argues that Under Order 42 Rule 6(2) of the Civil Procedure Rules, a stay is warranted where the appeal would otherwise be rendered nugatory. The Applicants submit that if the Land Registrar is not restrained from facilitating a transfer of Title No. CR. 7556, the Respondent could alienate the property to a third party. Such a party would undoubtedly shield themselves under the Doctrine of an Innocent Purchaser for Value without Notice. Should the land change hands, the Applicants would face an insurmountable legal wall, making the recovery of the land a practical and legal impossibility even if they succeed in Civil Appeal No. 146 of 2025. To prevent this fait accompli, the register must be frozen to ensure the subject matter remains within the reach of the Court of Appeal. 8.The applicant argues that as deposed by Benson Lusweti Wanyonyi, in his Affidavit dated and Sworn on 26th February, 2026 the loss faced here transcends pecuniary valuation. While the cost of rebuilding may be quantified, the agony, mental anguish, and profound social dislocation of 300 families from their dwelling homes including the disruption of children's education and the demolition of a place of worship—cannot be monetarily compensated. The preservation of the status quo is necessary to ensure that the "scales of justice" remain balanced. If the community is scattered before the appeal is heard, justice will have been defeated by the mere speed of execution. 9.The applicant argues that the application is not opposed as the Respondent has elected not to file a Replying Affidavit. Pursuant to the principle in Habib v. Sayed KLR, facts not denied in an affidavit are deemed admitted. Consequently, the depositions by Benson Lusweti Wanyonyi regarding the imminent displacement of 300 households and the specific existence of the schools and church on Plot No. L.R. 15/V/MN remain uncontroverted. The Respondent has, by their silence, effectively conceded to the urgency of this matter and the grave consequences of an execution at this stage. 10.In conclusion, the applicant submits that the threshold for a stay has been met, the Court's discretion should be exercised ex-debito justitiae in favour of the Applicant. The balance of convenience tilts overwhelmingly toward protecting human dignity over commercial interests. 11.The plaintiff/respondent on his part submits that the orders sought in the application cannot be granted because the way the orders are crafted, it is not clear what exactly the Applicants are seeking before court. The way they are drafted, it is clear that prayers 1, 2 and 4 are spent because they were sought pending hearing and determination of the application. 12.The respondent submits that the prayers are not available for determination inter-partes and therefore the respondents will not dwell on them. The only substantive prayer that is sought pending hearing and determination of the appeal is prayer 3. The Respondent has not faced any application seeking stay of execution of the judgment and it will be unjust and unfair to issue an order that has not been sought.On the even if considered on merits, the application cannot be granted. 13.The respondent argues that the threshold for granting stay of execution pending appeal is a well-trodden path. The three grounds that the court considers under Order 42 Rule 6 of the Civil Procedure Rules are that:a.The application is bought without undue delay;b.The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; andc.Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. " 14.The above conditions are conjunctive. That means that an applicant must meet all of them before an order of stay of execution can be granted. On whether the application was brought without undue delay, the respondent argues that the judgment was delivered on 7th November 2025. The present application was filed on 3rd March 2025. There was delay of four months, which is inordinate. No explanation has been given by the Applicants for such inordinate delay. 15.On whether the Applicant has offered security, the respondent argues that the Applicants have not committed that they would furnish any security. They did not mention security in the whole of their application and supporting affidavit. They failed to meet the legal requirement as to security. 16.On whether the Applicants will suffer substantial loss, the respondent argues that The Applicants pleaded that they "stand to suffer irreparably" which is different from substantial loss. In any event, although the Applicants have pleaded that they "stand to suffer irreparably," they did not explain how they will suffer. They cannot suffer because they have no interest in the suit property since the decisions delivered against them in Civil Suit No. 57 of 2010 have not been set aside. 17.This suit is limited to the 7 defendants and the Applicants cannot speak for the alleged 300 households who are not before court and whom have not authorized them to speak for them. The respondents refer to the case of George Kimotho Ilewe v Annastacia Wanza Muthuka & Joseph Mutuku Ngewa (Suing as Legal Representatives of the Estate of Judy Kioo Wanza — Deceased) [2021] KEI-IC 7873 (KLR), Odunga, J. (as he then was) stated as follows:20.I therefore agree with the decision in Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where the court observed that:“It is not enough to merely put forward mere assertions of substantial loss there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss... "32.I agree with the position adopted in Bungoma High Court Misc Application No 42 of 2011 - James Wangalwa & Another vs. Agnes Nalîaka Cheseto that:"The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or ne ate the are essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail. " 18.The respondents contend that the Applicants did not establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicants as the successful party in the intended appeal. Further, the Applicant did not explain what loss, if any, it stands to suffer if the stay is not granted. It is time for the Respondent to enjoy its property especially because the Respondent spent a lot of money to compensate the Applicants so that they can vacate the suit property. 19.I have considered the application, the supporting affidavit and rival submissions and do find that in the circumstances of this case, the application is not made with undue delay as the parties are many including churches and schools. Moreover, the appeal is already filed pending allocation of a hearing date. On substantial loss, I do find that if evicted, the applicants will suffer substantial loss in terms of the schools being closed, and churches being closed and that the school going children will be irreparably affected. In upshot of the above, I do grant a stay of execution pending appeal but for only 200 days. This is on condition that the applicants deposit security of the value of KSH 500,000 in court. In the alternative, a cash deposit of Ksh 200,000 in a joint account opened in a reputable bank in the names of counsel on record within the next 60 days. Costs of the application in the appeal. Signed By/for:THE JUDICIAR Y OF KENYAHON. JUSTICE ANTONY O. OMBWAYOMOMBASA ENVIRONMENT AND LAND COURT