https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1571

Gahuri v Nyaga & another (Civil Appeal (Application) E037 of 2026) [2026] KECA 1571 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1571 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Appeal (Application) E037 of 2026 GV Odunga, HI Ong'udi & LM Njuguna, JJA July 31, 2026 Between Geoffrey Reys Njagi Gahuri Applicant and Lucy Wanjiru Nyaga 1st Respondent Charles Njue 2nd Respondent (Being an application for stay of execution of judgment and decree of the Environment and Land Court at Embu (Bor, J.) dated 11th September 2025 in ELC No. 37 of 2019 (OS)) Ruling 1.The applicant, Geoffrey Reys Njagi Gahuri, brought the notice of motion dated 6th October 2025 pursuant to rule 5 (2) (b) of the Court of Appeal Rules, Order 42 rule 6, and Order 51 of the Civil Procedure Rules, and sections 1A, 3, and 3A of the Civil Procedure Act, seeking inter alia that:“a)Pending the hearing and determination of this application inter partes, there be a stay of execution of the judgment delivered on 11th September 2025 in Embu ELC No. 37 of 2019 (OS).b)Costs of this application be provided for.” 2.The applicant’s motion is brought on several grounds set out on its face inter alia; the intended appeal is arguable with high chances of success and would be rendered nugatory if execution, specifically the cancellation of title to land parcel No. Gaturi/ Nembure/2900 (“suit land”) and its resultant subdivisions being Gaturi/Nembure/16489/16490/16491/16492/16493 is permitted to proceed. 3.The application is supported by the affidavit of the applicant, in which he reiterates the grounds on the face of the application and further states that he is the rightful owner of the suit land, having been allocated it by his clan in the 1960s. He deposes that he is apprehensive that the suit land may be subject to adverse dealings by the respondents, rendering his appeal nugatory. He asserts that his appeal is arguable and confirms his willingness to provide security, and that the respondents will not suffer any prejudice if the suit land is preserved. 4.In her replying affidavit sworn on 16th October 2025, the 1st respondent, Lucy Wanjiru Nyaga, avers that the motion is an abuse of the court process and is barred by the doctrine of res judicata. She contends that the applicant filed a prior suit in 1996, which was dismissed in 2001 for want of prosecution, and that there has been no review or appeal of the said decision; that the applicant lacks legal standing to maintain this application, as he has already subdivided and transferred the suit land to various third parties who have not been enjoined in these proceedings, that she has enjoyed open, exclusive and peaceful possession of the land since 1974, during which time she has developed the property. She states that she buried her husband, sons, and mother-in-law on the subject land, and that she has acquired rights over the land through adverse possession. She asserts that no execution has commenced and that orders of stay of execution, if granted, would be prejudicial, potentially rendering her and the 2nd respondent destitute, as they have no other home. 5.When the matter came before us for hearing on 16th June 2026, learned counsel, Mr. Robinson Kigen, appeared for the respondents. There was no appearance for the applicant despite due service of the hearing notice on their advocate on record. His counsel, A.P Kariithi, had, however, filed submissions on his behalf. Mr. Kigen relied on the submissions and briefly highlighted the same. 6.In his submissions dated 14th October 2025, the applicant cited the case of RWW vs. EKW [2019] eKLR, emphasizing why the court should grant him an order of stay of execution pending appeal. He submitted that without the order, the suit land is likely to be disposed of or transferred by the respondents, which would render the intended appeal nugatory. He maintained that he stood to suffer irreparable loss and damage if the status quo was not maintained. He placed reliance on the case of Absalom Dova vs Tarbo Transporters [2013] eKLR. It was his submission that the appeal discloses triable issues. 7.On possession, the applicant submitted that the respondents are his cousins who were originally permitted on the land as licensees after the 1st respondent was chased away from her home. It was submitted that there has been no delay in seeking relief, noting that the Judgment was delivered on 11th September 2025, following which the Notice of Appeal was filed on 15th September 2025. We were urged to allow the application. 8.On their part, the respondents submitted that the application is barred by the doctrine of res judicata and that it is an abuse of the court process. They stated that the applicant previously filed a suit seeking eviction orders in (Civil Suit No. 189 of 1996) concerning the same property, which was dismissed for want of prosecution in 2001. It is their contention that the said dismissal operates as a final judgement and relied on the case of Njue Ngai vs. Ephantus Njiru Ngai & Anor [2016] KECA 805 (KLR) in support of that submission. 9.They further submitted that they have been in open, exclusive, and continuous possession of the suit land since 1974, a period exceeding fifty years during this time, they have built houses, cultivated crops, and buried their family members on the land, specifically in 1993, 2002, and 2004. Consequently, they argued that the applicant’s title was extinguished by operation of law under section 17 of Limitation of Actions Act. They further argued that the applicant lacks locus standi to pursue the appeal or this application, having subdivided and transferred the title of the suit land to third parties. 10.On the arguability of the appeal, the respondents submitted that it has been 24 years since the suit was dismissed in the year 2001, far exceeding the 12-year statutory limit for recovering land. As such, they contended that there is no arguable case established by the applicant. We were urged to dismiss the application. 11.We have considered the application, the responses, submissions, and the applicable law. We find that the stay of execution orders that the applicant is seeking are incapable of being granted for the reason that the relief was sought pending the hearing and determination of the application inter partes, and it would serve no purpose for the court to grant the orders as framed, as the orders would be spent upon delivery of this ruling. There is no prayer for stay of execution pending the hearing and determination of the appeal. 12.This Court, in the case of Kemboi vs. Marta & Another; Ruto (Objector) [2025] KECA 838 (KLR), cautioned against poorly drafted prayers in an application of this nature as follows;“Crafting a good pleading calls for precision in drafting, diligence, and an understanding of the legal principles which are necessary to formulate a complete cause of action and precision in the prayers sought…. No court of law can knowingly grant an order which will serve no utilitarian purpose. Courts of law loathe engaging in a futile exercise.” 13.This application was dead on arrival. 14.Even if the application was competent, it would fail on the basis of the uncontroverted contention by the respondents that the applicant lacks locus standi to pursue the appeal or this application, having subdivided and transferred the title of the suit land to third parties. An applicant is required not only to prove that the intended appeal is arguable but also that unless the stay sought is granted, the success of that appeal would be rendered nugatory. Where an applicant has parted ways with title to the property in dispute, as is being contended by the respondents, we do not see how the success of the intended appeal would be rendered nugatory. We are not satisfied that the application meets the threshold for grant of stay pending appeal. 15.Accordingly, the application is dismissed with costs to the respondents. 16.It is so ordered. DATED AND DELIVERED AT MERU THIS 31ST DAY OF JULY 2026.G. V. ODUNGA……………………………JUDGE OF APPEALG. ONG’UDI……………………………JUDGE OF APPEALL. NJUGUNA……………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR