Njihia v Gachanja (Environment and Land Appeal E010 of 2026) [2026] KEELC 4226 (KLR) (9 July 2026) (Ruling)

Njihia v Gachanja (Environment and Land Appeal E010 of 2026) [2026] KEELC 4226 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4226 (KLR) Republic of Kenya In the Environment and Land Court at Nyandarua Environment and Land Appeal E010 of 2026 JM Kamau, J July 9, 2026 Between John Njoroge Njihia Appellant and Josiah Muchangi Gachanja Respondent Ruling 1.In the Decree dated 12/3/2026 in Nyahururu CMELC No. 38 of 2019 the Honourable John Wanganga made the following orders in the suit between the Appellant herein who was the Defendant in the lower court and the Respondent who was the Plaintiff as follows:-a.A declaration that the Plaintiff is the original allottee, genuine and legitimate owner of all that parcel of land known and described as land title number Ol Kalou Township block 2/228 [Formerly UNS. Commercial Plot No. Y38. - Ol Kalou Town] measuring 0.0451 hectares or thereabouts and that the defendant has no proprietary or registrable right or interest therein whatsoever.b.A declaration that the defendant is a trespasser in the said land title number Ol Kalou Township block 2/228 [Formerly UNS. Commercial Plot No. Y38. - Ol Kalou Town]c.An order of eviction and ejectment of the defendant from the said land title number Ol Kalou Township block 2/228 [Formerly UNS. Commercial Plot No. Y38. - Ol Kalou Town]d.An order for demolition and removal of the defendant’s permanent commercial building, fences and any other structures or developments belonging to defendant from the said land title number Ol Kalou Township block 2/228 [Formerly UNS. Commercial Plot No. Y38. - Ol Kalou Town]e.A permanent injunction restraining the defendant, by himself, members of his family, proxies, servants, employees or agents or anybody else claiming under him from entering, remaining, using, developing, erecting structures or in any other manner dealing with or interfering with his quiet possession, occupation and use of the said land title number Ol Kalou Township block 2/228 [Formerly UNS. Commercial Plot No. Y38. - Ol Kalou Town]f.General damages for trespass and mesne profits together with interests thereon Of importance to the current Application for stay of execution dated 30/3/2026 is order Nos. (c) (d) (e) and (f). 2.The Appellant having been dissatisfied with the said Judgment appealed against the whole Judgment and an Application with prayers for : -1.Spent2.Spent.3.Pending the hearing and determination of the Appeal herein, there be a stay of execution of the Judgment and Decree delivered on 12/3/2026.4.The Applicant be allowed to furnish security for the due performance of any Decree that may ultimately be binding upon him by depositing Title No. Nyandarua/Kirima/229 measuring approximately 5.6 Hectares and valued at over Kshs 16,000,000/- as security for the due performance of any Decree that may ultimately be binding upon him.5.Costs of this Application be in the Appeal. 3.He grounded his Application on the reasons as follows: -a.The Appeal is arguable and raises serious issues on the root of the Title, competing survey processes, administration irregularities, limitation of acting and lawful occupation of the suit property.b.The impugned Judgment grants drastic and irreversible orders including eviction, demolition of permanent developments and damages against the Applicant.c.The Applicant has been in open, continuous and uninterrupted occupation of the suit property since the year 2000 and has erected permanent commercial developments thereon pursuant to a claim of right.d.Execution of the Decree will result in eviction and demolition of the said permanent structures thereby occasioning substantial and irreparable loss.e.The demolition will permanently alter the substratum of the Appeal and render the Appeal nugatory.f.The loss to be suffered includes not only financial loss but also loss of long possession and the sentimental and proprietary value attached to the land which cannot be adequately compensated by damages.g.The Application has been bought without unreasonable delay.h.The Applicant is ready and willing to furnish security in the form of immovable property of substantial value exceeding the decretal sum.i.It is in the interest of justice that the status quo be preserved pending the hearing and determination of this Application and the Appeal. 4.Those are the grounds on the face of the Application which were also expounded in the Affidavit in support thereof sworn on even date. He deponed that his case before the trial court was that plot No. 743, Ol-kalou township was allotted to one Stephen Nyambane by the Commissioner of lands on 30/1/1992 who later transferred the land to John Bosco Muchuku Gitau who was issued with a clearance certificate and the Appellant then on 12/6/2000 jointly with Abigael Wanjiru Njoroge bought the property from Rahab Wanjiru Muchuku, the Administrator of the Estate of John Bosco Muchuku Gitau for valuable consideration and the transfer executed in their favour by the then Town council of Ol-kalou upon which he took possession of the same. 5.He urges that the orders he seeks be granted so that the Appeal, if successful, is not rendered nugatory since the substratum of the Appeal could possibly be unavailable, besides the sentimental, personal and proprietary value attached to the suit property for many years. 6.He further deponed that the substantial loss is real, immediate and grave because once evicted and his permanent commercial building and other structures are demolished, the Appeal would lose its practical utility and the substratum of the dispute would have been destroyed and that damages would not be an adequate remedy since the disruption to the use and occupation of the property and the sentimental value would be lost. 7.He also urged that the Application was brought without unreasonable delay and in utmost good faith immediately upon the delivery of the impugned Judgment and Decree. 8.He finally said that the Application was not seeking to obstruct justice or to delay the Respondent the realization of fruits of his Judgment unfairly but was meant to only preserve the property and the subject matter of the Appeal so that the Appellate Court could determine the dispute in a meaningful, effective and non-academic manner. 9.In the Replying Affidavit of the Respondent herein, Josiah Muchangi Gachanja sworn on 14/4/2026, the Respondent deponed that he filed the suit in the lower Court against the Appellant seeking for various reliefs including s a Declaration that he was the owner of the suit property and that the Appellant was a trespasser thereon which suit was heard on merit and Judgment delivered in his favour and that the Appellant’s development are on the suit property belonging to the Respondent. 10.He said that this Court cannot at this stage determine the issues in the Memorandum of Appeal. He said that the Appellant had not demonstrated that he would suffer substantial loss unless a stay of execution of the trial Court’s Judgment is granted to him. And that he had not filed valuation Report to support the value of Kshs. 16,000,000/- for the land known as Title No. NYANDARUA / KIRIMA/229. Further, that there is nothing to show that the Appeal if successful would be rendered nugatory unless a stay of the Judgment is granted. He therefore prayed that the Application be dismissed with costs. 11.In his further Affidavit sworn on 1/5/2026 , the Appellant said that in the Judgment of the lower Court, the dispute revolves around competing claims to ownership of the land on which Ol-kalou Township Block 2/228 stands and which dispute is not a simple trespass but one deep -rooted in conflicting survey records and that the developments thereon are of a permanent nature constructed with substantial financial resources and formed the backbone of his livelihood and economic investment of over a period exceeding 2 decades and against which the trial Court made an order of demolition without undertaking a conclusive determination of the competing claims to Title and survey integrity and such demolition could be irreversible and this Court will be deprived of the opportunity to adjudicate the dispute in its original context. He committed himself to abide by any conditions the Court may impose on him and that the Respondent would suffer no prejudice if stay is granted as the property would remain preserved pending determination of the Appeal but on the contrary he would suffer grave injustice and irreparable harm should the orders not be granted. 12.In view of the Decree of the lower Court which gives draconian orders of a permanent nature, I would agree with the Applicant that should the Decree be executed, the Applicant would suffer irreparably and this Appeal should it be successful, would be rendered nugatory particularly order No. (d) of the Decree dated 12/3/2026. 13.I therefore issue a stay of execution of prayer Nos. (c) and (d) of the said Decree. The costs of this Application will abide the results of this Appeal whose record I order should be filed within the next 45 days from the date hereof. RULING DATED AND SIGNED AT NYANDARUA THIS 9TH DAY OF JULY, 2026.MUGO KAMAUJUDGEIn the presence of:Samson……………………………………C/AFor Appellant……………Mr. Gakuhi ChegeFor the Respondent……Mr. Kinyanjui Njogu