https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3636

Gitonga & another v Muriithi & 4 others (Environment and Land Miscellaneous Application E050 of 2025) [2026] KEELC 3636 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3636 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Miscellaneous Application E050 of 2025 EK Makori, J June 10, 2026 Between Venancio Mwangi Gitonga 1st Applicant Alice Wanjiku Gikandi 2nd Applicant and Damaris Wairimu Muriithi 1st Respondent Gathigi Mundia 2nd Respondent Karuri Mugo 3rd Respondent Maina Kahuthia 4th Respondent Hiram Githaiga Ngundo 5th Respondent Ruling 1.The Applicants herein filed an application under a Notice of Motion dated December 8, 2025, seeking the following orders:a.Spent.b.Spent.c.That this Honor Court be pleased to issue an order staying execution of the Judgment delivered on December 5, 2025, in MCELC/13/2020, Venancio Mwangi & Another v Damaris Wairimu & Others, and of the resulting decree, pending the hearing and determination of the Applicant’s intended appeal to the Environment and Land Court at Nyeri.d.That, pending the hearing and determination of the intended appeal, this Honorable Court is respectfully requested to issue a temporary injunction restraining the Respondents, their agents, servants, or any persons acting on their behalf, from selling, leasing, disposing of, or canceling the Applicants’ titles Nos. Kirimukuyu/Mbogoini/1148 and Kirimukuyu/Mbogoini/1147 to third parties.e.That this Honourable Court be pleased to issue a temporary order of injunction restraining the Respondents, their agents, and servants from taking any steps to enforce, execute, or implement the said judgment or decree, including but not limited to issuing eviction notices and deploying any agents or law enforcement officers to take unlawful possession of the suit properties or otherwise interfering with the Applicant’s peaceful occupation of all that land known as Title Nos. Kirimukuyu/Mbogoini/1148 and Kirimukuyu/Mbogoini/1147 are pending the hearing and determination of the appeal.f.That the OCS Kiamachibi Police Station be instructed to ensure compliance with the Court's orders.g.That the Court be pleased to grant such additional and other reliefs as it considers appropriate and expedient under the circumstances.h.That the costs be in the cause. 2.The application is supported by the affidavit of the 1st Applicant, who deposed that on December 5, 2025, the Lower Court delivered judgment and orders in MCELC/13/2020, Venancio Mwangi Gitonga & Alice Wanjiku Gikandi v Damaris Wairimu Muriithi & Gathigi Mundia & 3 Others, against him and his co-Applicant, which are now the subject of an intended appeal. 3.Being dissatisfied with the said Judgment delivered on 5th December 2025, the Applicants have duly requested certified copies of the proceedings and Judgment to facilitate the preparation of the Record of Appeal and taking all requisite steps to ensure that the appeal is filed and prosecuted without undue delay. 4.Notwithstanding this, the Applicants aver that they are the registered owners of and have been in continuous, uninterrupted, and exclusive use, occupation, and possession of the suit properties known as Kirimukuyu/Mbogoini/1147 & Kirimukuyu/Mbogoini/1148 respectively, from the early 1960s, as well as their ancestors before them, having also occupied the suit property from that period. 5.The Applicants contend that the Respondents have persistently and unlawfully interfered with this right and have previously issued threats of eviction under the guise of “clan rights,” and attempted to encroach on their parcels of land, and purported to assert ownership over the suit lands. 6.It is deposed that unless a stay of execution is granted pending the appeal, the Respondents may proceed with execution by effecting the cancellation of our titles, thereby occasioning irreparable harm to us and rendering the intended appeal nugatory. 7.The Applicants are apprehensive that the impending cancellation of title would significantly alter the status of the suit property, disrupt long-standing possession, and render the intended appeal wholly nugatory as the substratum of the appeal would have been irreversibly altered before the Appellate Court is allowed to consider the matter. 8.The Applicants accuse the Respondents of having previously used financial leverage to threaten, harass, intimidate, and compel them to vacate the suit property. Such conduct has included verbal threats of forcible eviction, unlawful deployment of police officers to pressure them to surrender possession of the suit properties, and the assertion that this is the reason they are entitled to the injunctive relief sought to restrain further interference with the suit properties. 9.As advised by their advocates on record, the Applicants depose that such reliefs are necessary to preserve the substratum of the intended appeal and that unless a stay of execution is granted pending the appeal, the Respondents are likely to proceed with execution, thereby occasioning irreparable prejudice to us and rendering the intended appeal nugatory. Thus, they pray that their application be allowed. The 3rd Respondent’s replying affidavit 10.The 3rd Respondent swore an affidavit in response to the instant application on January 19, 2026, on his own behalf and on behalf of the 1st, 2nd, 4th, and 5th Respondents. 11.He deposed that the application does not meet the threshold for the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules because the Applicants have not demonstrated any substantial loss they would suffer if the orders sought are not granted, which is a mandatory requirement for a stay of execution. 12.The Respondents assert that the Judgment issued on December 5, 2025, appropriately determined the rights of the parties following a comprehensive hearing, and that the Court ruled in favor of the Respondents, including the annulment of the Applicants' titles. 13.Furthermore, they contend that the Applicants' assertion that they will incur irreparable harm is speculative, generalized, and not substantiated by evidence. Consequently, it fails to meet the requisite legal standard, as mere apprehension of execution or fear of eviction does not constitute substantial loss under the law. 14.The Respondents assert that they are entitled to the fruits of their judgment, which was lawfully obtained, and that granting the orders sought would unjustly deny them the benefit of a valid court decree and amount to punishing a successful litigant. 15.It is also their contention that the explanation offered for the delay and failure to annex the impugned Judgment is insufficient to warrant the extraordinary discretionary relief sought. 16.Furthermore, the Applicants have not provided any security for the proper execution of the decree, as mandated by Order 42 Rule 6(2)(b) of the Civil Procedure Rules. The Applicants’ supplementary affidavit 17.The 2nd Applicant swore a supplementary affidavit on January 23, 2026, in response to the 3rd Respondent’s reply affidavit. 18.She informed the Court that the Applicants have since filed an appeal before this Court, the Environment and Land Court at Nyeri, Land Appeal No. E007 of 2026 [Venancio Mwangi Gitonga & another v. Damaris Wairimu Gikandi & others], thereby actualizing their intention to challenge the decision of the trial Magistrate. 19.They insisted that they have clearly demonstrated the loss they stand to suffer and that their fears are not unfounded in light of the Respondents' previous actions of dividing and fencing off portions of the land in question, which led to the institution of the suit before the Magistrate's Court at Karatina. 20.As advised by their advocates on record, they have the right to challenge the lower court's decision on appeal, and it would be necessary to maintain the status quo by issuing stay orders, given that the Applicants have the right to challenge the decision that invalidated their titles, thereby rendering them destitute. 21.Further, it is deposed that contrary to the Respondents' assertion regarding security, the Applicants have duly deposited their title documents with the court as security pending the hearing and determination of the appeal, which they deem to be ample security. The Applicants’ written submissions 22.Counsel for the Applicants quoted Order 42 rule 6 of the Civil Procedure Rules and the case of RWW v EKW (2019) eKLR, where the Court stated that the purpose of an order of stay pending appeal is to prevent the impending cancellation of titles from significantly altering the status of the suit property, disrupting long-standing possession, and rendering the pending appeal wholly nugatory, as the substratum of the appeal would have been irreversibly altered before the Appellate Court is allowed to consider the matter. 23.That such alienation, transfer, leasing, or further dealings occurring would interfere with the Applicants’ long-standing occupation and would clearly be irreversibly compromised. Any subsequent reversal by this Court will be futile. 24.Regarding whether the Application was filed without unreasonable delay, it is evident that the impugned judgment was delivered on 5th December 2025, while the instant Application was filed on 18th December 2025, within the 30-day appeal period. They contend that the present Application was filed timeously, hence there is no delay whatsoever. 25.Regarding the last condition regarding the provision of security for costs, they submitted that Order 42 Rule 6 (2) (b) of the Civil Procedure Rules is mandatory, requiring the Applicant to furnish security for the performance of the order or decree, and that the Applicants have duly deposited their title documents with the court as security pending the hearing and determination of the appeal. 26.It is submitted that the Applicants have satisfied the required conditions and therefore met the threshold for the Court to grant an order staying execution pending appeal. They have established sufficient cause and demonstrated that they will suffer substantial loss unless a stay is granted, setting out a real danger that may occur if the orders for stay of execution and/or maintenance of the status quo are not granted. Lastly, they have already secured their position by depositing their title documents with the Court. 27.Regarding costs, Counsel submitted that under section 27 of the Civil Procedure Act, Cap 21, the costs of any action, cause, or other matter or issue shall follow the event unless the Court or judge orders otherwise for good reason. They further submit that the Applicants, being forced to file the present application following the Respondents' actions to execute the impugned Judgment of the Lower Court, are entitled to the costs of the present application. The Respondents’ written submissions 28.Counsel for the Respondents submitted that the cornerstone of the jurisdiction to grant a stay is proof of substantial loss, and that in the present case the Applicants have not discharged this burden. Their assertions that they risk eviction and loss of property are general, speculative, and unsupported by evidence. They relied on the authority of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR. 29.The Respondents contend that the Applicants have not demonstrated any exceptional circumstances and merely express fear of execution, which is a lawful process. Further, the Applicants’ allegation that they face imminent eviction is not only speculative but also factually unfounded. 30.Regarding whether the appeal will be rendered nugatory, the Respondents submit that the Applicants’ titles were nullified after a full hearing and that the Court found them unlawfully acquired. They further submit that this Honorable Court cannot be invited, through an interlocutory application, to preserve a proprietary interest that has already been declared unlawful by a competent court. They hold that courts have consistently held that a successful litigant is entitled to the fruits of judgment, and that the Applicants have not demonstrated sufficient cause to warrant depriving the Respondents of that right. 31.Regarding security, they argue that the Applicants have failed to comply with the mandatory provisions of Order 42 Rule 6(2)(b), and that the alleged deposit of title documents does not constitute adequate security capable of guaranteeing the due performance of the decree. Analysis and Determination 32.The Applicants have sought two main orders, one to stay execution of the Trial Court’s judgment dated December 5, 2025, and the other to grant an injunction pending appeal. 33.Thus, the first question to address is whether the Court should grant the Applicants' stay of execution of the Trial Court’s judgment delivered on December 5, 2025. 34.The Applicants mention only the judgment delivered on December 5, 2025, by the trial court in Karatina MCELC No. 13 of 2020, but have failed to attach a copy of that judgment while seeking a stay of a decision that is not before this Court. Thus, the Court cannot appreciate what orders the Applicants intend to stay. 35.The Applicants have disclosed that they have already filed their appeal and have annexed their Memorandum of Appeal dated 21st January 2026. However, the pendency of an appeal or an application for a stay does not automatically stay execution under Order 42 Rule 6(1) of the Civil Procedure Rules. Execution of a decree is lawful, as held in James Wangalwa & 2 Others v Agnes Naliaka Cheseto [2012] eKLR, where the Court observed that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.The applicant must 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 Applicant as the successful party in the appeal.” 36.It is not this Court’s duty to call for the appeal file that is not before it for determination in this instance, to peruse the contents of the impugned judgment. I agree with Wabwoto J’s sentiments in Kamanga v Kirara & another (Environment & Land Case 1057 of 2015) [2025] KEELC 278 (KLR) (3 February 2025) (Judgment), where he expressed that:“It is always the duty of the litigants to place material in support of their case. It is not the mandate of the court to go on a fact-finding mission.” 37.Consequently, the current application herein lacks merit for failure to file the impugned judgment and is hereby struck out with costs. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THE 10TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Michuki for the ApplicantMr. Kebuka for the RespondentDennis: Court Assistant