Githae v Ngugi (Suing on Behalf of the Estate of Esther Waigwe Ngugi (Deceased)) & another (Environment and Land Appeal E001 of 2023) [2026] KEELC 4872 (KLR) (27 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLA E001 OF 2023** **JOYCE WANJIRU GITHAE………………..…………………..……………………..… APPELLANT** **VERSUS** **JOSEPH IRUNGU NGUGI suing on behalf of the Estate of** **ESTHER WAIGWE NGUGI(Deceased)……………………..……………..………1ST RESPONDENT** **PETER MACHARIA MUNDIA suing on behalf of the Estate of** **BEATRICE WAMWERU MUNDIA(Deceased)…………….…………………….2ND RESPONDENT** ***(Being an Appeal against the Judgement of Hon. S. Mwangi S.R.M delivered on 12/7/2023, in Murang’a CMELC Case No. 44 of 2020)*** **RULING** 1. This ruling is on the notice of motion dated 15-2-2026. The motion which is by the Respondents in the main appeal is brought under **Sections 3A and 63(c)** and **(e) of the Civil Procedure Act,** **Order 42 rules 6(1)** and **43** of the Civil Procedure Rules and all other enabling provisions of the law and powers of the Court. 2. The motion seeks two residual orders. **4. That this Court be pleased to stay the execution of the certificate of costs in Murang’a MCELC case No. 44 of 2020 dated 17-4-2025 pending the hearing and determination of the appeal in Nyeri Court of Appeal E027 of 2024.** **5. That the costs of this application be in the cause.** Prayers 1,2 and 3 were not allowed exparte. 1. The motion is based on four grounds and it is supported by the affidavit of the 1st Respondent. The essence of the grounds and the affidavit is as follows. Firstly, the Appellants were aggrieved by the judgment of this Court dated 10-9-2024 and they preferred appeal No. E027 of 2024 at the Court of Appeal in Nyeri. Secondly, their appeal has a high likelihood of success and for this reason, the current status quo needs to be maintained. Thirdly, the Appellant in this case has commenced the execution process for the awarded costs. Finally, the pending appeal will be rendered nugatory if this motion is not allowed. 2. The motion is opposed by the Appellant who has sworn a replying affidavit dated 15-3-2026 in which she states as follows. One, the motion seeks to stay the execution of the certificate of costs but not the decree dated 10-9-2024 yet the certificate of costs was issued much later on 29-5-225. Two, there is already partial execution of the decree as can be seen by the notice of intention to ascertain and fix boundaries dated 29-10-2025. Three, the motion does not meet the threshold for the grant of an order of stay of execution because no substantial loss has been proved, there is a delay of 9 months since the certificate of costs was issued and no security for the due performance of the decree has been provided. 3. Counsel for parties filed written submissions dated 25-3-2026 and 11-5-2026. The submissions dated 25-3-2026 are not paid for and they should be paid for. Both counsel are agreed that there and only two issues to be decided. * 1. **Whether the motion meets the threshold for the grant of the orders of stay of execution.** 2. **Who is to bear the costs of the application.** 4. I have carefully considered the motion in its entirety including the grounds, the supporting affidavit, the replying affidavit, the written submissions and the law cited therein and finally, the issues. I agree with the learned counsel for both sides on the issues. **Order 42 rule 6(2)** Civil Procedure Rules provides as follows. **(2) “ No order for stay of execution shall be made under subrule (1) unless-** * + 1. **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** 2. **such security as the Court orders for the due performance of such decree or orders as may ultimately be binding upon him has been given by the Applicant.”** 1. For the Respondents to succeed in this application, they must prove that they will suffer substantial loss if the Appellant executes the certificate of cots for Kshs 45,150/=. Secondly, they must prove that the motion dated 15-2-2026 has been filed without delay. Finally, they must prove that they have given or they will give a guarantee for the due performance of any decree or order that may finally issue against them. All the three conditions must be satisfied before the order issues. Failure to satisfy any one of the three conditions renders the motion unsuccessful. 2. On the ground of substantial loss, I find that the Respondents will not suffer substantial loss if they satisfy the certificate of costs which is only Kshs. 45,150/=. Substantial loss would entail the appeal being rendered nugatory if execution proceeds, irreparable loss that cannot be adequately compensated by an award of damages/loss of property or rights in circumstances where restoration would be impossible or extremely tedious, inability to recover the decretal sum from the decree holder if the appeal succeeds etcetra. In this case none of the above has been proved by the Respondents. Payment of Kshs. 45,150/= cannot by any estimation be considered as substantial loss. 1. Secondly, I find that the current motion has been brought after unreasonable delay. The judgment is dated 10-9-2024. The ruling on the taxed costs is dated 20-3-2025 and the certificate of costs is dated 19-11-2025. This motion is itself dated 15-2-2026 which is almost 1 ½ years after the judgment, almost a year since the taxation of the costs and almost three months since the certificate of costs was issued. This delay is not explained anywhere in the grounds and the affidavit in support of the motion. The Respondents are not saying that there was any illness or other exceptional circumstances that caused this delay in the filing of the motion. There is, instead the implication that the boundary determination exercise has already taken place. Paragraph 7 of the replying affidavit dated 17-3-2026 is the basis for this. The long delay in filing the current motion is not explained. 2. Finally, the Respondents have not said anywhere in the grounds or the supporting affidavit that they will not be able to recover the costs in case their appeal succeeds. They have also not said that they are doing all that is possible to expedite the hearing of the appeal. Finally, they have not offered any security for the due performance of the final decree. In short, they have failed on this final ground as well. 3. In conclusion and for the above stated reasons, I find **no merit** in the motion dated 15-2-2026 which I **dismiss** with costs. **Dated, Signed and Delivered virtually at Murang’a this 27th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Appellant’s Counsel – Mr. Ndungu** **Respondents’ Counsel - Mr Mbugua**