https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3342

Njoroge v Mwema & another (Environment and Land Appeal E011 of 2024) [2026] KEELC 3342 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3342 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E011 of 2024 MN Gicheru, J June 2, 2026 Between James Mburu Njoroge Appellant and Peter Kamau Mwema 1st Respondent Peter Njoroge Mwema 2nd Respondent (Being an Appeal against the entire Judgment and/or consequent Order of the Magistrate Court Environment and Land Case at Kandara, delivered on 29th February, 2024 by Hon. E.W. Wambugu (PM) in Chief Magistrate’s Environment and Land Case No. 21 of 2020) Ruling 1.This ruling is on the notice of motion dated 14-8-2025. The motion which is brought under articles 164 and 50 of the Constitution, sections 1B, 3A, 18 and 63(e) of the Civil Procedure Act, order 42 rule 6 of the Civil Procedure Rules and all other enabling provisions of the law seeks the following residual orders.3.That pending the hearing and determination of Civil Appeal No. 130 of 205, Nyeri, this court be pleased to grant stay of execution of the judgment dated 6th May 2025 directing the Appellant to bear the costs of the appeal and Kandara MCELC No. 21 of 2020.7.That the costs of this application be provided for. 2.The motion is based on five(5) residual grounds and an affidavit sworn by the appellant dated 14-8-2025. The gist of the grounds and the supporting affidavit is as follows. Firstly, the appellant has lodged Civil Appeal No. 130 of 2025, Nyeri raising weighty and arguable issues of law and fact particularly on the correct interpretation and application of section 27 of the Civil Procedure Act regarding costs and condemning a wholly successful appellant to bear the costs of both the appeal and the lower court proceedings. Secondly, unless the stay of execution of the impugned costs order is granted, the respondent is likely to commence execution proceedings thereby occasioning substantial loss, irreparable harm and undermining the substratum of the pending appeal contrary to order 42 rule 6(2) of the Civil Procedure Rules. Thirdly, no prejudice will be occasioned to the respondent if the orders sought are granted; rather they will safeguard the appellant’s constitutional rights, uphold the principles of fairness under article 159(2) (a) and (e) of the Constitution, and ensure that justice is seen to be done. Fourthly, the court has wide and unfettered discretion under sections 1A, 1B and 3A of the Civil Procedure Act to issue such orders as may be necessary for the ends of justice or to prevent abuse of the court process. Finally, the appeal has overwhelming chances of success and it is in the interest of justice that the appeal be preserved by way of injunctive relief. 3.The motion, though served, is unopposed since the respondents did not file any replying affidavit or grounds of opposition. 4.Counsel for the appellant filed written submissions dated 30-4-2026. The issues identified are as follows.a.Whether the motion meets the threshold for stay of execution pending appeal.b.Whether the Appellant stands to suffer irreparable loss if the orders sought are not granted.c.In whose favour does the balance of convenience tilt? 5.I have carefully considered the motion in its entirety including the grounds, the supporting affidavit and the submissions by the learned counsel for the appellant. I find as follows on the issues identified by the learned counsel for the appellant. 6.Regarding the first issue, I find that the appellant has not demonstrated that he stands to suffer substantial loss. He lost in the lower court. He also lost in appeal. The only reason why he was allowed to have the case reheard was that he hired an unqualified person to represent and alleged that he was in occupation of the suit land or part of it. The appellant cannot therefore be heard to say that he cannot pay the costs adjudged against him.In addition to the payment of costs, there were other directions that the court issued as to the expeditious disposal of the lower court suit. There is no evidence that those directions were complied with. 7.Looking at the second issue, there is no proof that the appellant will suffer irreparable loss if he pays the costs awarded to the respondents. He will be like a defendant paying thrown away costs where such a defendant has been given a chance to defend a suit which had proceeded exparte. Payment of costs will prove that the appellant has a good case and in the end, he will recover the said costs if he eventually succeeds in his claim. The appellant is not saying that the respondents will not be in a position to refund the costs in the event that the appellant eventually succeeds. The respondents will afford the costs because they have the suit land which I believe is worth more than the costs. 8.Finally, on the issue of in whose appear the balance of convenient tilts, I find the balance of convenience applies in cases of injunctions as per the case of Giella v Cassman Brown [1973] EA, 358. The applicable principles in this case are those in order 42 rule 6(2) of the Civil Procedure Rules of substantial loss, the motion being filed without in ordinate delay and the applicant providing security for the due performance of any order or decree that may be binding upon him. All these three conditions must be satisfied before the order for stay of execution is allowed.In this case, the appellant having lost twice is seeking to avoid paying costs while he continues to litigate on an issue that he should have litigated from the very beginning. Surely, he must not fear paying the costs.For the above stated reasons, I find no merit in the motion dated 14-8-2025 which I dismiss with costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF JUNE, 2026.M. N. GICHERUJUDGEDelivered online in the presence of; -Court Assistant – Antony.Appellant’s Counsel – Miss Mwema holding brief.Respondents’ Counsel – Absent.