Kirera v M’Mwongo & 4 others (Environment and Land Appeal E099 of 2025) [2026] KEELC 5330 (KLR) (18 August 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELCL APPEAL NO. E099 OF 2025** **JACOB KIBITI KIRERA.............................................APPELLANT** **=VERSUS=** **FREDRICK KINOTI M’MWONGO .....................1ST RESPONDENT** **STEPHEN LUMBWA........................................2ND RESPONDENT** **PETER GITUMA MAINGI.................................3RD RESPONDENT** **ROSEMARY KATHAMBI..................................4TH RESPONDENT** **=AND=** **STANLEY KIOGORA ARTHUR.......................INTERESTED PARTY** **RULING** **Background** 1. Vide two sale agreements dated **15/1/2000** and **15/10/2001,** the 1st respondent sold to the appellant a total of two acres out of land parcel number **Ngusishi Settlement Scheme/55**, which at that time was registered in the name of the late **M’Mwongo M’Mukangu**. When succession relating to the estate of the late M’Mukangu was eventually done, the two acres that had been sold to the appellant by the 1st respondent were not factored in the distribution of the estate. The land was instead shared out amongst the identified beneficiaries of the estate of the late M’Mukangu. 2. Consequently, the appellant filed **Meru CMC Civil Case No 132 of 2021** seeking an order of specific performance relating to the two contracts. As an alternative relief, the appellant sought a refund of “*the purchase price of the current market price*”. The respondent filed a defence and counterclaim in which they contested the claim and sought an order decreeing eviction of the appellant from parcel numbers **Ngusishi Settlement Scheme/2956, 2957, 2958** and **2959** which were subdivisions surveyed out of parcel number 55 following conclusion of the succession cause relating to the estate of the late M’Mukangu. 3. Upon conducting trial and receiving submissions, the trial court [J M Njoroge, CM] rendered a Judgment dated 28/11/2025 in which it held that the land sale agreements between the appellant and the 1st respondent were entered into in contravention of **Section 45** of the **Law of Succession Act**. The trial court declined to grant the appellant the order of specific performance. The trial court instead granted the appellant the alternative relief in the following verbatim terms:- ***“(a) The 1st defendant be ordered to refund the purchase and the agreed penalties. (sic)*** ***(b) Upon (a), the plaintiff shall grant vacant possession and lease occupation from the purchased (2) acres of land in Ngusishi Settlement Scheme/55. [sic]*** ***(c ) There shall be no orders as to costs.”*** 1. Aggrieved by the Judgment of the trial court, the appellant brought this appeal. Among other grounds, the appellant faulted the trial court for failing to issue the order of specific performance. He urged this court to set aside the Judgment of the trial court and replace it with orders granting him “*the prayers sought in the lower court*”. He also prayed for costs of the appeal. **Application** 1. Subsequent to filing the memorandum of appeal, the appellant brought a notice of motion dated 23/2/2025, seeking an order of stay of execution. The application was not specific on the duration of the order of stay of execution. In addition, the appellant sought an interlocutory injunction restraining the respondent against entering, trespassing on, dealing with, selling or interfering with the suit properties pending the hearing and disposal of the appeal. The said application is the subject of this ruling. 2. The application is premised on the grounds outlined on the face of the motion and in the appellant’s two affidavits dated 23/2/2026 and 5/5/2025. It was canvassed through written submissions dated 5/5/2026, filed by ***M/s Otieno C & Company Advocates***. The case of the appellant is that the respondents are “*moving with lightening speed to ensure that*” he is evicted from the suit land without meeting the terms of the decree that was issued by the trial court. He adds that he is exposed to irreparable damage. He faults the 5th respondent for swearing the replying affidavit in which he raised the issue of intermeddling contrary to **Section 45** of the **Law of Succession Act**, adding that the 5th respondent was a witness to the sale agreement dated 15/6/2000. 3. The appellant further contends that the 1st and 5th interested party acknowledged in the agreement that the suit land was registered in the name of the late M’Mukangu and that the 1st respondent was the administrator of the estate and was selling the land in that capacity. He adds that the 1st and 5th respondents caused the suit property to be subdivided and transferred to third parties (2nd – 4th respondents). He urges the court to grant the two orders. 4. The respondents opposed the application through a replying affidavit sworn by Stanley Kiogora Arthur [5th respondent] on 20/4/2026; a supplementary affidavit sworn by Fredrick Kinoti M’Mwongo [1st respondent] on 2/6/2026 and written submissions dated 8/6/2026, filed by ***M/s F J Mugambi & Company Advocates***. The case of the respondents is that the 1st respondent sold to the appellant two acres out of Ngusishi/Settlement Scheme/55 vide two separate agreements dated 15/6/2000 and 15/10/2001. At the time of entering into the two sale agreements, the suit land was registered in the name of the late M’Mukangu [father to the 1st and 5th respondents]. The sale amounted to intermeddling with the estate of the late M’Mukangu. 5. The respondents add that besides the sale, the 5th respondent leased part of the land to the appellant from 1/2/2008 to 2019. They add that the family of the late M’Mukangu carried out succession and caused the suit land to be subdivided into four (4) and transferred the four parcels to the beneficiaries. The 1st respondent got 1½ acres which was less than the 2 acres that he had sold to the appellant. 6. The respondents add that at that point, the 1st respondent procured a cheque for Kshs 520,000 being the agreed liquidated damages in the event of non-completion of the two sale contracts but the appellant declined to accept the cheque, insisting on being given the land. 7. The respondent add that they took possession of the suit land in December 2025, cultivated it and planted crops on it. They add that the temporary structures which are on the suit land were erected by the late mother of the 1st and 5th respondents. They urge the court to dismiss the application. 8. The court has considered the application, the response to the application and the parties’ respective submissions. The following are the two issues that fall for determination in the application: (i) Whether the application meets the criteria upon which this court exercises jurisdiction to grant an order of stay of execution pending the hearing and disposal of an appeal; and (ii) Whether the application meets the criteria upon which this court exercises jurisdiction to grant an order of interlocutory injunction pending the hearing and disposal of an appeal by this court. I will be brief in my analysis and disposal of the two issues. 9. The criteria upon which this court exercises jurisdiction to grant an order of stay of execution pending the hearing and disposal of an appeal by the court is contained in **Order 42 rule 6(2)** which provides as follows: ***“No order for stay of execution shall be made under subrule (1) unless—*** ***(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and*** ***(b) 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.”*** 1. The impugned judgment was rendered on 28/11/2025. The memorandum of appeal was filed on 20/12/2025. The application under consideration was filed on 24/2/2026. Inordinate delay has not been raised as an issue in the application. Cognisant of the fact that the question as to whether there has been inordinately delay is always one to be determined on a case by case basis, in the absence of any proposition by the respondent, the court has no basis for holding that there was inordinate delay. 2. On substantial loss, through his own pleadings in the trial court, the appellant prayed for an order of specific performance. As an alternative relief, the appellant expressly prayed for *“a refund of the purchase priced at the current market price”*. In its decree, the trial court granted the appellant the purchase price together with the agreed contractual penalties. The trial court further decreed that the respondents were to comply with the first limb of the award before the appellant parts with possession of the two acres. Suffice to add that, in each of the two agreements, parties agreed on liquidated damages (contractual penalties) of Kshs 260,000. 3. Taking into account the alternative relief which the appellant sought and the decree which the trial court ultimately issued, I do not think the element of substantial loss has been disclosed or demonstrated in the application under consideration. 4. On security, the applicant has not made any proposal as to security for the due performance of the decree. A party inviting the court to grant a stay under **Order 42 rule 6(2)** of the **Civil Procedure Rules** has a duty to offer security. The applicant has not discharged that duty. 5. Consequently, my finding on the 1st issue is that the application under consideration does not meet the criteria for granting an order of stay of execution pending the hearing and disposal of an appeal. 6. Does the application meet the criteria for granting an interlocutory injunction by this court when exercising appellate jurisdiction? The jurisdiction of this court to issue an interlocutory injunction when exercising appellate jurisdiction is granted by **Order 42 rule 6(6)** of the **Civil Procedure Rules** which provides as follows: ***“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”*** 1. Over the years, Kenya’s superior courts have developed principles that guide the exercise of the above jurisdiction (see ***(i) Madhupaper International Limited Vs Kerr [1985] KLR 840; (ii) Venture Capital & Credit Limited Vs Consolidated Bank of Kenya Ltd; Civil Application No. 349 of 2003 (174 of 2003 UR); and (iii) Butt V Rent Restriction Tribunal (1982) KLR 417)***. 2. It is enough to state that, the jurisdiction of a first appellate court to grant an interlocutory injunction under **Order 42 Rule 6(6**) of the **Civil Procedure Rules** is a discretionary and equitable one. Secondly, the discretion will not be exercised in favour of an applicant whose appeal is frivolous; the applicant must demonstrate that a reasonable argument can be put forward in support of his appeal. Thirdly, the discretion should be refused where it would inflict greater hardship than it would prevent. Fourthly, the applicant must show that refusal to grant the injunction would render his appeal nugatory. Fifth, the court is to be guided by the principles in in ***Giella Vs Cassman Brown & Company Ltd [ 1973] EA 358*.** Lastly, whenever disposing a plea for an interlocutory injunction, the court does not make definitive or conclusive pronouncements on the key issues in the dispute. 3. The court has looked at the pleadings that formed the basis of the trial in the lower court. The court has also looked at the evidence that was tendered by the parties, including the two sale agreements. On the face of the two sale agreements, there appears to have been a mutual agreement that in the event of breach, such as non-completion by the vendor, the relief available to the aggrieved party would be in form of liquidated damages which they specified in the two agreements. For this reason, I do not think it would be proper for this court to give an interlocutory injunction outside what the parties mutually agreed as adequate contractual remedies. 4. For the above reasons, the finding of the court on the plea for an order of injunction is that the application does not meet the criteria for granting an interlocutory injunction under **Oder 42 rule 6(6)** of the **Civil Procedure Rules**. 1. The result is that the application dated 23/2/2026 is rejected and dismissed for lack of merit. **DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF AUGUST, 2026.** **B M EBOSO [MR]** **ELC JUDGE** **In the Presence of:** Mr Otieno C for the Applicant/Appellant Mr. Mugambi for the Respondents Mr. Tupet – Court Assistant