https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1458

Mbithi v Wanjiru & another (Suing as legal representatives of the Estate of the Late Karanja Njagi) (Civil Application E042 of 2026) [2026] KECA 1458 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1458 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Application E042 of 2026 SG Kairu, GV Odunga & HI Ong'udi, JJA July 17, 2026 Between Joel Mbithi Applicant and Eunice Wanjiru and Regina Wakure Karanja (Suing as legal representatives of the Estate of the Late Karanja Njagi) Respondent (Being an application for stay of judgment and/or decree of the Environment and Land Court of Kenya at Embu (K. Bor J.) delivered on 9th February 2026 in ELC No. 118 of 2014) Ruling 1.The applicant’s notice of motion dated 12th August 2024 and brought primarily under rule 5(2)(b) of the Court of Appeal Rules, seeks orders that pending the hearing and determination of his intended appeal to this Court, there be: a stay of judgment and/or decree in Embu ELC Case No. 118 of 2014 delivered on 9th February 2026; conservatory orders of injunction restraining the respondents from entering and taking possession of the suit property known as Mbeere/Wachoro/1620; and appropriate orders to preserve the subject matter of the intended appeal by maintaining status quo in the subject matter of the intended appeal. He also prays that the costs of application do abide the outcome of the intended appeal. 2.A brief background of the dispute is that the respondents, in their capacity as the legal representatives of the estate of the late Karanja Njagi (deceased), instituted a suit against the applicant for trespass on the suit property which was registered in the name of the deceased. Following his death, the same was registered in the name of Eunice Wanjiru Wanjohi to hold it on behalf of herself and the other beneficiaries of the estate. They contended that the applicant had, without any legal right, gone into occupation of the suit property and had refused to vacate hence the suit against him. 3.The applicant, on the other hand, contended that he had been in occupation of the suit land since 1992, after a meeting with the late Karanja Njagi and the area Chief Josphat Mwangi. He claimed the land based on adverse possession. In the impugned judgment, the Learned Judge issued a permanent injunction removing the applicant from the suit land and awarded the respondents general damages for trespass and costs of the suit. 4.Dissatisfied with that decision, the applicant, who has filed a notice of appeal, intends to appeal to this Court on the grounds that the learned Judge failed to find that the title the respondents had obtained was illegally acquired as they had only obtained a limited grant for purposes of filing a suit at the Environment and Land Court as opposed to a Confirmed Grant of Letters of Representation. Further, that no document was produced by the respondents to prove ownership. According to the applicant, he has an arguable appeal with very high chances of success. 5.The respondents, in the replying affidavit, are of the view that the applicant has delayed in seeking the orders sought herein and that in any case the intended appeal does not raise any serious issues. 6.When this application came up for plenary hearing on 15th July 2026, only Ms Esami learned counsel, who held brief for Mr Nyamu, appeared for the applicant. The respondents, despite service of the notice of hearing, were not represented. Ms Esami relied entirely on the submissions filed. 7.We have considered the record of the application together with the responses filed in opposition thereto as well as the submissions. 8.It is our view that the intended grounds of appeal cannot, at this stage, be termed as frivolous. They are worth pursuing in the intended appeal. 9.The applicant further avers that his family resides on the suit land, and has built a permanent dwelling place where they have resided for decades and have no other place to call home and unless the orders of stay are granted, the appeal will be rendered nugatory, academic and is likely to be overtaken by events. His case is that it is necessary to stay the execution of judgment for the preservation of the suit land pending the hearing and determination of the appeal. The respondents, on the other hand, while not contesting those factual averments, took the position that the suit property is capable of being preserved and restored to the applicant in the event that the intended appeal succeeds. In the event that the Court is amenable to granting the orders sought, the respondents prayed that there be an adequate security to be furnished by the applicant. 10.We are of the view that the applicant has proved that, in the absence of stay, his intended appeal, should it succeed, may be rendered nugatory if the suit property were to change hands to the detriment of his family. 11.In the premises, we find that the applicant has satisfied the conditions necessary for grant of the relief under rule 5(2)(b) of the Rules of this Court as expounded in the case of Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. 12.Consequently, we allow this application and grant the orders staying the judgment and/or decree in Embu ELC Case No. 118 of 2014 delivered on 9th February 2026 as well as an order of injunction restraining the respondents from entering and taking possession of the suit property pending the hearing and determination of the intended appeal. The costs of the application will be in the intended appeal. DATED AND DELIVERED AT MERU THIS 17TH DAY OF JULY, 2026.S. GATEMBU. KAIRU, FCIArb, C.Arb….………………..………….JUDGE OF APPEALG.V. ODUNGA….………………..………….JUDGE OF APPEALH. I. ONG’UDI….………………..………….JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR