https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3753

Njoroge v Karanja & 3 others (Environment and Land Appeal E121 of 2025) [2026] KEELC 3753 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3753 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E121 of 2025 JA Mogeni, J June 18, 2026 Between John Thumbi Njoroge Appellant and Gibson Kimingi Karanja 1st Respondent Caroline Ngendo Karanja 2nd Respondent Esther Wanjiru Karanja 3rd Respondent Joyce Wangui Karanja 4th Respondent Ruling 1.There are two applications which are closely related one is dated 4/12/2025 brought under Section 3A of the Civil Procedure Act, Order 22 and Order 51 of the Civil Procedure Rules 2010 for Orders that:i.That this Honourable Court be pleased to stay the execution of the Decree issued herein and all consequential orders thereto pending the hearing and determination of ELC APPEAL NO. ELCLA E121 OF 2025.ii.That the cost of this application be provided for. 2.The Application is based on the Supporting Affidavit of John Thumbi Njoroge, and he stated that the Applicant being dissatisfied with the Judgment of Hon. Jared O. Magori delivered on the 4/09/ 2025 at the Limuru Chief Magistrates Courts has already lodged an Appeal, which Appeal is yet to be determined. Further that Applicant has an arguable Appeal with high chance of success which Appeal shall be rendered nugatory if the execution of the Judgment hereinbefore mentioned is not stayed. 3.The second application is brought under Section 3A of the Civil Procedure Act, Order 22 and Order 51 of the Civil Procedure Rules 2010 where they Applicant seeks the following orders:i.That this Honourable Court be pleased to stay the execution of the Decree issued herein and all consequential orders thereto pending the hearing and determination of ELC Appeal No. 121 OF 2025.ii.That the cost of this application be provided for. 4.The Application is dated 5/12/2025 and the grounds upon which the application is based and the Supporting Affidavit of John Thumbi Njoroge is that the Applicant being dissatisfied with the Judgment of Hon. Jared O. Magori delivered on the 4/09/2025 at the Limuru Chief Magistrates Courts has already lodged an Appeal, which Appeal is yet to be determined. Further that the Applicant has an arguable Appeal with high chance of success which Appeal shall be rendered nugatory if the execution of the Judgment hereinbefore mentioned is not stayed. That the Respondents have already moved the Limuru Chief Magistrates Court for orders of forceful eviction after extracting the Decree. 5.Generally, the two applications which are similar are based on the grounds that:a.The Applicant has already lodged a substantive Appeal (ELC APPEAL NO. ELCLA E121 OF 2025) against the Judgment delivered by the Limuru Chief Magistrate’s Court on 4th September 2025.b.The intended Appeal is not frivolous and carries a high probability of success. Should a stay not be granted, the Appeal will be rendered nugatory as the Decree will have been executed.c.There is a specific threat of substantial loss and irreparable harm, as the Respondents have already extracted the Decree and filed for forceful eviction orders in the lower Court.d.It is necessary to preserve the status quo and the subject matter of the suit until the Appellate Court has had the opportunity to review the lower Court's findings. 6.In opposition to the Application for Stay of Execution dated 5/12/2025 Gibson Kimingi Karanja swore a Replying Affidavit on 23/01/2026 and averred that the Appellant/Applicant is seeking to have another bite on the cherry noting that he had filed an earlier case against the Respondents' father which was Limuru Civil Case 153/2005 (john Thumbi Njoroge Vs James Karanja Kimingi) which he failed to prosecute and the same was dismissed on 10/08/2010 which proceedings and pleadings are shown in annexure marked “GKK1” filed in Limuru Civil Case 153/2005. 7.That as such, the Appellant/Applicant stands to suffer no prejudice at all having failed to prosecute his initial case Limuru Civil Case 153/2005 as well as his Counterclaim in this matter and as such litigation must come to an end on this matter. 8.The 1st Respondent avers that it is uncontroverted that the Appellant/Applicant did not enter into any contract with the Respondents herein for the sale of the suit property which was quarter (¼) acre that was to be carved out of the Land Title No. Escarpment/Kinale Block 1/2787. And that there was no privity of contract at all between the Appellant/Applicant and the Respondents herein. 9.Further that it is uncontroverted that the Appellant/Applicant only entered into contracts with the 1st Respondent’s father James Karanja Kimingi who is not a party in this Appeal for the sale of ½ acre which was to be carved out of the Land Title No. Escarpment/Kinale Block 1/2787. But the Appellant breached the same. 10.He deposes that the Appellant/Applicant breached the Sale Agreement dated 15/12/1998 between the Appellant/Applicant and the father of the 1st Respondent James Karanja Kimingi (who is still alive and who is not a party in this Appeal) as he did not pay the purchase price balance of Kshs. 115,000/= as per the annexure marked “GKK2” which is the said Agreement. 11.That the Appellant/Applicant then entered into a further agreement dated 23rd November 2003 for purchase of a smaller piece of land measuring ¼ acre instead of ½ acre and again the Appellant/Applicant breached this further agreement as he never paid the newly agreed purchase price balance of Kshs. 12,500/= within sixty (60) days as was agreed. The same was never paid to date. Herewith annexed and marked "GKK3" is the said Further Agreement. 12.Accordingly, the Respondent deposes that this Honourable Court should note that the Appellant/Applicant is seeking to have a fifth (5th) bite on the cherry noting that:a.He breached the agreement dated 15th December 1998.b.He breached the further agreement dated 23rd November 2003.c.He lost Limuru Civil Case 153/2005 which was dismissed on 10/08/2010.d.He failed to prosecute his Counterclaim in this suit. 13.According to him, the Appellant/Applicant has not satisfied the grounds for granting of stay of execution of the Judgement and Decree. Further, the Appellant/Applicant stands to suffer no prejudice as the trial Court ordered the Respondent’s father (who was the 5th Plaintiff at the trial Court) to refund him the paid sum of Kshs. 75,000/= which he did but the Appellant's Advocates on record (Njeri Gathua & Co. Advocates) declined to receive the cheque for the same and the copy is attached as annexure marked as “GKK4” and the letter to the Appellant's Advocates and marked “GKK5” is the Cheque sent to the Appellant's Advocates. 14.It is the 1st Respondent’s contention that the Appellant/Applicant is not entitled to the prayers sought as he has enjoyed the land without paying the full purchase price and he stands to suffer no loss whatsoever. In any event, the land is no longer in the 1st Respondent’s father's name. As per the annexure marked “GKK6” which is the Title Deed in the Respondents' names together with the search. 15.To the 1st Respondent, the Appellant/Applicant is not entitled to the prayers sought as he has not provided any security in exchange for stay and he has also not provided any security for the stated costs as per the trial Court's Decree which is marked as annexure “GKK7” being the Decree and Certificate of Stated Costs. 16.According to the 1st Respondent’s averment, the firm of Kinyanjui & Co. Advocates are strangers in this matter as they are not properly on record and their purported Notice of Appeal, Memorandum of Appeal and the instant application ought to be struck out in limine. He concludes by asking the Court to dismiss entirely the instant application. 17.The application was canvassed by way of written submissions. 18.The Appellant/Applicant in their submissions stated that the Applicant has preferred a timely Memorandum of Appeal raising substantial triable issues with a high probability of success. While the Respondents initially challenged the locus of the Applicant’s Counsel, the procedural irregularity under Order 9 Rule 9 of the Civil Procedure Rules was effectively cured by the trial Court on 4/12/2025, thereby regularizing the current application and the firm's standing on record. 19.It is further submitted that the subject matter of the Appeal constitutes the Applicant’s matrimonial and family home, housing nine family members, and in the absence of a stay, the Applicant stands to suffer irreparable loss and substantial prejudice, rendering the intended Appeal nugatory and an academic exercise; thus, the interests of justice militate in favor of maintaining the status quo and extending the interim stay orders until the final determination of ELCL Appeal No. E121 of 2025. 20.My scanning of the Case Tracking System (CTS) did not come up with any submissions filed by the 1st Respondent since no other party filed a response to the application save for the 1st Respondent. Analysis and Determination 21.Having carefully considered the twin Applications dated 4/12/2025 and 5/12/2025 the Replying Affidavit, and the rival submissions preferred by the parties, the following three issues emerge for determination:i.Whether the Applications are procedurally competent in light of the challenge to the locus standi of the firm of M/s Kinyanjui & Co. Associates.ii.Whether the Applicant has satisfied the criteria for a stay of execution pending Appeal as established under Order 42 Rule 6 of the Civil Procedure Rules.iii.Whether the grant of a stay is necessary to meet the ends of justice and preserve the subject matter of the suit. 22.The 1st Respondent raised a Preliminary Objection regarding the standing of the Applicant's Advocates, terming them "strangers" to the suit. This touches on the provisions of Order 9 Rule 9 of the Civil Procedure Rules regarding the change of Advocates after Judgment. 23.However, the record reflects that the trial Court at Limuru regularized the firm’s appointment on 4/12/2025. In Kenyan jurisprudence, procedural technicalities must not be allowed to override substantive justice. As stated by the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR:“Deviations from procedural rules should not be a basis for dismissing an action unless the deviation is so fundamental as to go to the jurisdiction of the Court." 24.Since the irregularity was cured before the lower Court, this Court finds the Applications properly before it. The power of this Court to grant a stay of execution is discretionary but must be exercised within the strictures of Order 42 Rule 6(2), which requires the Applicant to demonstrate:i.That substantial loss may result unless the order is made;ii.That the application has been made without unreasonable delay; andiii.That security as the Court orders for the due performance of the Decree has been given. 25.The Applicant contends that the suit property is his matrimonial home housing nine family members. The 1st Respondent, conversely, argues that since the trial Court ordered a refund of the purchase price of Kshs. 75,000/=, no prejudice exists. 26.In law, substantial loss is not merely financial; it is the permanent deprivation of a right or property that cannot be easily reversed. Regarding land and homes, the Courts have always been protective. In the English case of Wilson v Church (No. 2) [1879] 12 Ch D 457, Cotton LJ stated:“I am of the opinion that we ought to take care that if the [Appellant] is rightly entitled to the property... the Appeal is not rendered nugatory." 27.This principle was domesticated in National Industrial Credit Bank Ltd v Ndemi Lane Apartments Ltd [2004] KEHC 2701, where the Court held that:“The Court in exercising its discretion ... is to ensure that the Appeal, if successful, is not rendered a mere academic exercise." 28.If the Applicant and his family are forcefully evicted and the house demolished or the land alienated before the Appeal is heard, the Appeal, even if successful, would not only be rendered nugatory but it will be according to me hollow victory. Therefore, the threat of eviction from a primary residence constitutes substantial loss in this context. 29.The Respondent characterizes the Appeal as frivolous and a fifth bite of the cherry, citing previous dismissals and breaches of contract. While this Court cannot determine the merits of the Appeal at this interlocutory stage, it must satisfy itself that the Appeal is not sham. 30.As Professor Jackton B. Ojwang (Justice Emeritus) notes in his academic writings on property and constitutional law, the right to be heard on a proprietary dispute is a central pillar of the rule of law. The Applicant’s dissatisfaction with the findings on privity of contract and breach constitutes triable grounds of law. This Court finds that the Appeal is arguable, which is a lower threshold than one that must succeed. 31.The 1st Respondent correctly points out that the Applicant has not provided security for the Decree or the stated costs. The law is clear: a stay is a clog on the successful party’s right to enjoy the fruits of their Judgment. In Arun C. Sharma v Ashana Raikundalia & 2 Others [2014] eKLR, the Court observed:“The Court must balance the interests of the Applicant who has an arguable Appeal and the Respondent who has a Judgment in his favor." 32.To balance these interests, the Applicant must provide security to ensure the Respondent is not prejudiced by the delay. 33.In the end, the 1st Respondent’s narrative of historical breaches and failed cases such as Case 153/2005 suggests a long-standing dispute. However, the instant Appeal ELCLA E121 of 2025 is a distinct legal process arising from a recent Judgment delivered on 4/09/ 2025. The law favors the finality of litigation, but it also favors the right of appeal where a party feels aggrieved by a lower Court's decision. 34.One cannot ignore or overlook the fact that the eviction of a family from their home is a drastic measure. However, the Respondent’s right to the fruits of the Judgment must also be secured. 35.I therefore make the following disposal orders:i.The Applications dated 4/12/2025 and 5/12/2025 are hereby consolidated.ii.A conditional stay of execution of the Judgment and Decree in Limuru Magistrate’s Court ELC Case No. 43 of 2018 is hereby granted pending the hearing and determination of ELC Appeal No. ELCLA E121 of 2025.iii.The stay is conditioned upon the Applicant depositing Security for Costs in the sum of Kshs. 100,000/= in a joint interest-earning account in the names of the parties’ Advocates within thirty (30) days from the date hereof.iv.In default of the deposit of the said security within the stipulated time, the stay shall stand vacated, and the Respondents shall be at liberty to proceed with execution.v.Costs of these applications shall abide the outcome of the Appeal.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 18TH DAY OF JUNE, 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Njoroge Ng’ang’a for the AppellantMr. Daniel Maikia for the RespondentMs. Lillian - Court Assistant