https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4445

Munga v Karuga (Enviromental and Land Originating Summons 15 of 2023) [2026] KEELC 4445 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4445 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Enviromental and Land Originating Summons 15 of 2023 MN Gicheru, J July 13, 2026 Between John Munga Plaintiff and Timothy Githea Karuga Defendant Ruling 1.This ruling is on the notice of motion dated 24-3-2026. The motion which is by the Plaintiff seeks two residual orders.c.Stay of execution of the decree herein pending the hearing and final determination of an appeal intended to be filed at the Court of Appeal in Nyeri seeking to overturn the said decree.c.Such further or other orders be made as are just.Prayers (a) and (b) were not allowed ex parte. 2.The motion which is brought under Order 42 rule 6 of the Civil Procedure Rules and Sections 3A, 1A and 1B of the Civil Procedure Act and all other enabling provisions of the law is based on ten (10) grounds and is supported by the affidavit of John Munga, the Plaintiff, dated 24-3-2026. 3.The gist of the grounds and the affidavit is as follows. One, the Plaintiff filed this suit seeking a declaration that he was entitled to one acre of Loc.2/Gacharage/4609 by adverse possession but his suit was dismissed on 3-2-2026 and the Court ordered that he should vacate the suit land within 90 days or be evicted therefrom on expiry of the said period. Dissatisfied with the judgment of this Court, the Plaintiff filed a notice of appeal at the Court of Appeal in Nyeri and also applied for copies of typed proceedings and judgment. He had not been supplied with all the required material to enable him prepare the record of appeal, by the time he filed this motion. Two, the Plaintiff is apprehensive that he may be evicted from the suit land before his intended appeal is heard and determined. This eviction would involve demolishing the Plaintiff’s family house and uprooting of his tea bushes which would occasion him heavy losses which would be irrecoverable. Three, the Plaintiff undertakes to obey whatever decree the Court of Appeal may ultimately issue. Four, the Defendant will not suffer any undue or unacceptable damage if the stay is granted considering that he has not been in actual physical occupation of the suit land. 4.The motion though served is not opposed by the Respondent. 5.For the Court to allow a motion of staying of execution pending appeal, the Applicant must prove three (3) things.a.Substantial loss if the motion is not allowed.b.Filing of the motion without unreasonable delay.c.Provision of security for the performance of any decree that may ultimately be binding against him.This is in accordance with Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows.2,“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 not been given by the Applicant. 6.Regarding the first condition, I find that the Plaintiff does not stand to suffer substantial loss. Contrary to the deposition at paragraphs 5 and 6 of his affidavit dated 23-4-2026, he has no house on the suit land. This is as per the finding of the Court at paragraph 9 of the judgment dated 3-2-2026. It is therefore not correct for the Plaintiff to say that he has a house on the land. He also did not plant the tea on the land. He should not therefore uproot the tea growing on the land because it does not belong to him. If the Plaintiff really believes in his appeal, he would not be seeking to uproot the tea on the suit land. He would instead be seeking to restrain the Defendant from uprooting it pending the hearing and determination of the appeal. 7.As for the second ground, I find that the motion was not filed without unreasonable delay because the judgment was on 3-2-2026 and the current motion was filed in late April which is more than two (2) months from the date of judgment. Under Section 76G of the Civil Procedure Act, appeals are filed within 30 days. Filing an urgent application after 60 days is not expeditious and the motion is an afterthought. 8.Finally, I find that the Plaintiff has not offered any security for the due performance of the decree. He is not saying that he will compensate the Defendant for the tea that he has been illegally harvesting on the suit land. He is also not saying that he will deposit in Court an amount equivalent to the value of the tea that he will harvest when the appeal is pending. There is no demonstration of seriousness on his part. 9.In conclusion and for the reasons given, I find no merit in the motion dated 24-3-3036, which I dismiss.No orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 13TH DAY OF JULY, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants – Jackline and AntonyPlaintiff’s Counsel – AbsentDefendant’s Counsel – Absent