https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3391

Ireri v Samwel (Sued as the Administrator of the Estate of the Late Samwel Kanambu Njeru) (Environment and Land Appeal E015 of 2021) [2026] KEELC 3391 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3391 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Appeal E015 of 2021 EC Cherono, J May 28, 2026 Between Joseph Ndwiga Ireri Applicant and Simon Njeru Samwel (Sued as the Administrator of the Estate of the Late Samwel Kanambu Njeru) Respondent Ruling 1.Vide the Notice of Motion application dated 13/11/2025, the Applicant is seeking interalia:a.That the District Surveyor do survey land parcel No. Gaturi/Nembure/3413 and extract a portion of land measuring ½ acre.b.That the Court’s Deputy Registrar do sign the Land Control Board forms and transfer forms.c.That the Land Registrar Embu to dispense with the production of the original title deed to the said parcel of land.d.That the OCS Kianjokoma do provide security.e.Costs of the application be provided for. 2.The application is based on grounds on the face of the application supported by the affidavit of the Applicant, Joseph Ndwiga Ireri sworn on 13/11/2025. He deposed that vide the judgement dated 07/04/2025, the Court issued an order that the Respondent do transfer a portion of land measuring ½ acre in his name within 60 days. That on 05/05/2025, the Court issued an order of stay of execution for 60 days to enable the Respondent file an appeal. He averred that the Respondent had not been granted stay of execution by the Appellate Court in Nyeri neither had he been served with an appeal. 3.He averred that the Respondent had refused to subdivide the suit land as per the court order or sign the transfer forms and had instead re-subdivided the land with an aim of transferring it to each of the beneficiaries of the estate of the late Samuel Kanambiu Njeru. 4.The Respondent in opposition to the application filed a replying affidavit dated 13/03/2026. He deposed that the Applicant had come to court with untidy hands by seeking the orders in the application. He averred that the court issued a judgement dated 07/04/2025 to transfer a portion of land measuring ½ acre in the Applicants name within 60 days whereas the Applicant is not a beneficiary in the estate of the late Samwel Kanambiu Njeru. He stated that the Applicant was giving a false statement that he had not been granted a stay order by the appellate court in Nyeri and that he had filed a notice and memorandum of appeal vide Nyeri Civil Appeal No. E203 of 2025 which he annexed to the Affidavit. He stated that he was unable to subdivide the land or sign the transfer forms while there was a pending appeal. 5.He denied that he had re-subdivided the suit land with an aim of transferring it to the beneficiaries of the estate of the late Samwel Kanambu Njeru and averred that he could not do so whereas the appeal was pending. He averred that the application lacked merit, is an abuse of the court process and should be dismissed with costs. 6.When the application came up for directions, the parties agreed to proceed by way of affidavit evidence. 7.The Court has considered the application and the replying affidavit by the Respondent. The issue for determination is whether the application has merit. 8.The record shows that judgment was delivered on 07/04/2025 wherein this Court found that the Applicant was entitled to a portion measuring ½ acre to be excised from land parcel No. Gaturi/Nembure/3413 and transferred to him by the Respondent within sixty (60) days. The Court further directed that the Applicant would pay the balance of the purchase price of Kshs. 20,000/= within fourteen (14) days after transfer of the land. 9.It is also not disputed that following delivery of judgment, this Court granted a temporary stay of execution for forty five (45) days to enable the Respondent obtain a stay of execution from the Court of Appeal. From the material placed before the Court, the Respondent filed a Notice of Appeal on 17/04/2025 and subsequently filed a Memorandum of Appeal in Nyeri Civil Appeal No. E203 of 2025 dated 01/10/2025. 10.However, apart from annexing the Notice and Memorandum of Appeal, the Respondent has not placed before this Court any order issued by the appellate court staying execution of the judgment delivered on 07/04/2025. The temporary stay granted by this Court lapsed upon expiry of the forty five (45) days and no evidence was tendered to show that the same was extended. 11.In the absence of a subsisting order of stay, the decree issued by this Court remains enforceable notwithstanding the pendency of the appeal. Consequently, the Respondent cannot rely on the pending appeal as a basis for refusing to comply with the judgment of the Court. 12.The Court is therefore satisfied that the Applicant has established sufficient grounds for the enforcement of the decree and that the application is merited. Accordingly, the Notice of Motion dated 13/11/2025 is allowed in its entirety. 13.Costs to the Applicant. DATED, DELIVERED AND SIGNED AT EMBU THIS 28TH DAY OF MAY, 2026.HON. E.C CHERONOELC JUDGE, EMBUIn the presence of;Plaintiff/Advocate-absentDefendant in person-presentM/S Ruth C/A