https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3986

Ndwiga v Mwara (Enviromental and Land Originating Summons E001 of 2022) [2026] KEELC 3986 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3986 (KLR) Republic of Kenya In the Environment and Land Court at Embu Enviromental and Land Originating Summons E001 of 2022 EC Cherono, J June 11, 2026 Between Irene Warue Ndwiga Plaintiff and Nancy Njoki Mwara Defendant Ruling 1.Before the Court are two applications for determination. The first is the Plaintiff's Notice of Motion dated 14th November 2025 seeking orders authorizing the Deputy Registrar to execute all documents necessary to facilitate the subdivision and transfer of 0.20 Ha out of land parcel No. KYENI/MUFU/10658 in accordance with the judgment delivered on 17th July 2025, together with an order directing the Officer Commanding Station (OCS), Runyenjes Police Station, to provide security during the execution process. The second is the Defendant's Notice of Motion dated 28th January 2026 seeking an order of stay of execution of the said judgment and decree pending the hearing and determination of the appeal lodged before the Court of Appeal. 2.The applications are intertwined since the Plaintiff seeks to execute the decree while the Defendant seeks to suspend its execution pending appeal. It is therefore prudent to determine the application for stay first. 3.The principles governing stay of execution pending appeal are well settled under Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must demonstrate that substantial loss may result unless the order is granted, that the application has been made without unreasonable delay, and that security for the due performance of the decree has been offered. These principles were succinctly stated in Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR and have consistently been applied by superior courts. 4.On the issue of substantial loss, the Defendant contends that execution will lead to subdivision and transfer of the suit property and that the Plaintiff may thereafter dispose of the transferred portion, thereby rendering the appeal nugatory. The Plaintiff, on the other hand, maintains that she has been in occupation of the 0.20 Ha portion since 2003 and that the Defendant will remain with the balance of the land. 5.The Court appreciates that execution of the decree will culminate in subdivision and registration of separate titles. Once title passes to the Plaintiff, there exists the possibility of further dealings with the land which may complicate or render difficult the restoration of the status quo should the appeal ultimately succeed. Although the Defendant has not placed before the Court evidence that the Plaintiff intends to dispose of the land, the subject matter of the appeal is immovable property and courts have consistently recognized that preservation of land pending appeal may constitute sufficient demonstration of substantial loss. This Court is therefore satisfied that the Defendant has established this limb. 6.The second requirement concerns delay. Judgment was delivered on 17th July 2025 whereas the present application was filed on 28th January 2026, approximately six months later. The delay is undoubtedly considerable. The explanation offered is that the Defendant's previous advocates filed the Notice of Appeal, applied for proceedings and certificate of delay, but failed to properly prosecute and serve the appeal documents. While mistakes of counsel should not invariably be visited upon an innocent litigant, the explanation tendered is less than satisfactory. Nevertheless, the Court notes that a Notice of Appeal had already been filed and steps towards instituting the appeal had commenced. In the peculiar circumstances of this case, and bearing in mind the constitutional imperative to facilitate the right of appeal, I am prepared to excuse the delay, albeit reluctantly. 7.As regards security, although the Defendant did not initially propose any specific security, counsel expressly submitted that the Defendant is willing to abide by such conditions as the Court may impose. Since the decree concerns land and not a money decree, the requirement of security should be fashioned in a manner that balances the competing rights of both parties. 8.The Plaintiff further challenged the competence of the appeal and the propriety of the Defendant's advocates coming on record under Order 9 Rule 9 of the Civil Procedure Rules. Questions relating to the validity or competence of the appeal properly fall within the jurisdiction of the Court of Appeal. This Court cannot determine the validity of proceedings pending before that Court under the guise of an application for stay. Similarly, any issue concerning compliance with Order 9 Rule 9 was neither raised by way of a substantive application nor argued in sufficient detail to warrant determination at this stage. 9.Having considered the material before the Court, I am persuaded that the interests of justice would best be served by preserving the suit property pending the determination of the appeal, while safeguarding the Plaintiff against unnecessary delay in enjoying the fruits of her judgment. 10.The Plaintiff's application dated 14th November 2025 seeks consequential orders to facilitate execution of the decree. Those orders can only issue if execution is to proceed. Having found that a conditional stay is merited, the application cannot presently succeed. It shall, however, remain capable of revival should the Defendant fail to comply with the conditions imposed herein. 11.Accordingly, the Court makes the following orders: 1.The Defendant's Notice of Motion dated 28th January 2026 is allowed on condition. 2.There shall be a stay of execution of the judgment and decree delivered on 17th July 2025 pending the hearing and determination of the appeal. 3.As security for the due performance of the decree, the Defendant shall file within thirty (30) days from the date hereof a written undertaking not to alienate, charge, lease, subdivide or otherwise deal with land parcel No. KYENI/MUFU/10658 in a manner inconsistent with preservation of the suit property pending determination of the appeal. In default, the stay granted herein shall automatically lapse without further order of the Court. 4.The Defendant shall ensure that the Record of Appeal, if not already served, is duly served upon the Plaintiff within thirty (30) days, failing which the Plaintiff shall be at liberty to move the Court appropriately. 5.The Plaintiff's Notice of Motion dated 14th November 2025 is held in abeyance pending the determination of the appeal or until the stay granted herein lapses or is vacated. 6.Costs of both applications shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT EMBU THIS 11TH DAY OF JUNE, 2026.HON. E.C CHERONOELC JUDGE, EMBUIn the presence ofApplicant/Advocate-absentRespondent/Advocate-absentRuth C/A