https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1354

Magiri alias Mary Magiri (Suing as the Legal Representative of the Estate of M’magere M’anampiu - Deceased) v Magiri & 3 others (Civil Application E029 of 2025) [2026] KECA 1354 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1354 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E029 of 2025 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Karuthu Magiri alias Mary Magiri Suing as the Legal Representative of the Estate of M’magere M’anampiu - Deceased) Applicant and John Kaburu Magiri 1st Respondent Florence Muthoni Arira Charles 2nd Respondent David Gltonga Murlungi 3rd Respondent Joshua Mutiga M'ringera 4th Respondent (An application for stay of execution and a temporary order of injunction against the Judgment and Decree of the Environment and Land Court of Kenya at Meru delivered by C. K. Nzili, J. on 11th December, 2024 in ELC Case No. E001 of 2020 (OS).) Ruling 1.Before us is an application dated 30th January, 2025 expressed to be brought under rule 5 (2)(b) of the Court of Appeal Rules, 2022 (the Rules) and sections 3A and 3B of the Appellate Jurisdiction Act. It seeks a stay of execution of the judgment and decree of the Environment and Land Court [ELC] delivered by Nzili, J. on 11th December, 2024. It also seeks a temporary injunction restraining the respondents, their servants or agents or any persons acting on their behest from trespassing onto, occupying, leasing, fencing, cultivating, constructing, selling, leasing, subdividing or otherwise howsoever interfering with the applicant’s possession, utilization and enjoyment of the portion of land measuring 0.40 ha and 1.84 ha of LR Nos. Ntirimiti Settlement/1056 and 1057, respectively, pending the hearing and determination of the intended appeal. The applicant annexed a copy of the ELC judgment and the decree, as well as a notice of appeal to her affidavit sworn in support of the Motion. 2.The background of the case is that the applicant filed an amended OS dated 19th January, 2024, before the ELC, as legal representative of the deceased M’Magiri M’Anampiu, [deceased], seeking to be declared entitled to a portion measuring 0.40 ha and 1.84 ha out of LR Nos. Ntirimiti Settlement/1056 and l057, respectively, [hereinafter suit land] on grounds the family of the deceased had been in exclusive possession of the suit land since 1983, by virtue of adverse possession. The applicant claimed that the deceased and her family had been in adverse possession of the portion of the suit land since 1983 up to the time of coming to court. Aggrieved by the dismissal of the suit, the applicant filed this Motion. 3.The applicant contends that her family is in occupation of the suit land and that if execution takes place, they stand to be evicted, their property demolished, and they will be rendered destitute. She also contends that the family will suffer irreparable loss and damage. The applicant attached a draft memorandum of appeal in which she faults the ELC for finding that the elements of fraud pleaded against the respondents was not proved; failing to find that the applicants were in possession of the suit land; and failing to appreciate that the applicants had developments on the land worth millions of shillings. 4.The application was opposed. The 1st and 2nd respondents filed a replying affidavit dated 24th March, 2025. They contend that they are in possession of the suit land and have been cultivating on it. They averred that the applicant has been “inter planting” on the land, and that what the applicant annexed as photos of her developments on the land were actually the 1st respondent’s timber structure used by his farm workers while working on the farm. They averred that the suit land was plain land with no buildings other than the workers’ shelter. They also averred that it is fundamental that the suit before the ELC was res judicata, as there had been several cases between the parties since 1998 and that all were concluded in favour of the respondents. 5.The 3rd and 4th respondents filed their replying affidavit dated 2nd May, 2025. They aver that, just as the ELC found, the applicant does not live on the land, nor did he have developments on it. Their case was that they bought their portion of the suit land from the 1st respondent and that at the time, there were no developments on it. They averred that the applicant sent goons to the land to destroy the crops. 6.The applicant swore a further affidavit dated 24th March, 2025, in response thereto. She contended that at the hearing of the case, she produced photos showing her developments on the suit land. She also denied the 1st and 2nd respondents’ contention that she did not attach the judgment of the ELC. 7.The application was heard through this Court’s virtual platform on the 6th May, 2025. Mr. Collins Nyaga, learned counsel, was present for the applicant. Present for the 1st and 2nd respondents was Mr. Gikunda Anampiu, learned counsel while Ms. Lydia Athieno, learned counsel, was present for the 3rd and 4th respondents. Each counsel relied on their filed submissions dated 30th April, 2025, 2nd May, 2025 and 2nd May, 2025 respectively. They highlighted them, and we have considered them. 8.We have given due consideration to the application together with the supporting and further affidavit, the respondents’ replying affidavits, the rival submissions and the authorities relied thereon and the applicable law. It is trite law that in applications of this nature, the applicant must demonstrate, first, that she has an arguable appeal, which means one that raises a bona fide point worthy of consideration, though it must not necessarily succeed and second, that if the stay is not granted, the appeal, if successful, would be rendered nugatory. See Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR. 9.On arguability, the law is clear that an arguable appeal is not one that must necessarily succeed, but one that raises at least a single bona fide issue deserving consideration by the Court. An applicant need not show a multiplicity of arguable grounds; a single ground is sufficient. See Somak Travels Ltd vs. Gladys Aganyo [2016] eKLR. 10.The applicant contends that she is in possession of the suit land and should not be disturbed until her intended appeal is heard. We have considered the applicant’s contention and also considered the grounds in the draft memorandum of appeal. First off, the applicant seeks to stay a negative order. It is trite law that a negative order cannot be stayed. Her case was dismissed by the ELC. There is therefore nothing to stay. 11.As for the prayer for a temporary injunction to restrain the respondents from entering the suit land, this prayer presents serious difficulties. There is no clear evidence to show that the applicant is in possession of the suit land. What she claimed were developments on the land is contested. Secondly, it is not clear which portion of the suit land she claims. She gave figures; 0.40 ha of LR Nos. Ntirimiti Settlement/1056 and 1.84 ha of LR Nos. Ntirimiti Settlement/1057. That description is not sufficient to positively identify the actual portion of land on the ground in respect to which the order of injunction will apply. 12.On arguability, we find that it is not clear who is in possession and in the circumstances we are not satisfied that any eviction will take place; the order sought to be stayed is negative thus there is nothing to stay. We considered that the subject matter of this case has been in court since 1998, 28 years as of now; and every decision made by the courts has been in favour of the respondents. We find that the appeal is not arguable. 13.On the nugatory aspect, having found no clear evidence that the applicant is in possession of any portion of the suit land and that there was no clear evidence she has any form of development on the suit land, we are persuaded that the applicant has not established that the appeal will be rendered nugatory if the orders sought are declined. 14.The result of this Motion is that the application dated 30th January, 2025 is dismissed in its entirety. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI………………… JUDGE OF APPEALJ. LESIIT………………… JUDGE OF APPEALALI – ARONI………………… JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR