https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3071

Kaula v Muasa (Suing as the Administrator of the Estate of Ndinda Muasa - Deceased) & another (Environment and Land Appeal E020 of 2025) [2026] KEELC 3071 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3071 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Appeal E020 of 2025 EO Obaga, J May 21, 2026 Between Dickson Mutuku Kaula Appellant and Kitingo Muasa (Suing as the Administrator of the Estate of Ndinda Muasa - Deceased) 1st Respondent Serah Mueni Muasa 2nd Respondent Ruling 1.This is a ruling in respect of a notice of motion dated 16th October, 2025 in which in which the Appellant/Applicant seeks the following orders:1.Spent2.Spent3.That this court be pleased to issue an order for stay of execution of the judgment and orders issued by the Principal Magistrate’s court at Kilungu in MELC Case No. E020 of 2023 delivered on 5th September, 2025 pending the hearing and determination of the appeal.4.That specifically there be no interference or amendments to the register of the suit property Machakos/Ulu/71 until further orders of the court.5.That costs of this application be provided for. 2.The Applicant is a nephew of the Respondents. The Applicant’s mother is daughter to Ndinda Muasa who is mother to the Respondents. The subject of this appeal is a property known as Machakos/Ulu/71 measuring 12.0 Hectares and is registered in the name of Mukulu Kaula, the Applicant’s mother (suit property). 3.The Respondents had filed a suit at Kilungu Court where the Respondent had sought a declaration that the suit property was owned in equal portions by Ndinda Muasa and Mukulu Kaula. The Respondents also sought for a declaration that one of the Respondents Serah Mueni Muasa had purchased 9 acres from the Applicant. The Applicant filed a defence and a counterclaim in which he sought for an injunction restraining the Respondents from interfering with the suit property. 4.After a full hearing, the trial Magistrate found in favour of the Respondents and proceeded to dismiss the Applicant’s counterclaim. This is what triggered the appeal herein and the present application. 5.The Applicant contends that if stay of execution is not granted the Respondents will proceed to execute the decree which will result in cancellation of the title to the suit property whose effect will be to bring up a multiplicity of suits from persons who purchased land from Mukulu Kaula during her lifetime. 6.The Applicant contends that if the land was to be shared equally between Ndinda Muasa and Mukulu Kaula as per judgment of the court and Serah Mueni Muasa given 9 acres, this will cause substantial loss particularly for the Mukula Kaula family who are likely to suffer displacement as there are third parties who purchased land from Mukulu Kaula. 7.The Applicant’s application was opposed by the Respondents based on a replying affidavit sworn on 11th November, 2025. The Respondents contend that they obtained judgment after a hearing and that they are entitled to enjoy the fruits of their judgment. They state that there is no danger of immediate execution as there are succession proceedings to be undertaken before judgment is executed. 8.The Respondent further state that there is a contest in the succession court concerning the grant given to the Applicant and that he is not the person suitable to preserve the suit property and the alleged third party purchasers bought property from the Applicant who was intermeddling in the estate of Mukulu Kaula. 9.The parties were directed to file written submissions. The Applicant filed submissions dated 2nd November, 2025. The Respondents filed their submissions dated 23rd December, 2025. I have considered the Applicant’s application as well as the opposition to the same by the Respondents. I have also considered the submissions by the parties. The only issue for determination is whether the Applicant has met the threshold for grant of stay pending appeal. 10.The principles for grant of stay pending appeal are firstly that the Applicant has to bring the application without unreasonable delay. Secondly the Applicant has to demonstrate that he will suffer substantial loss if stay is not granted. Thirdly there has to be security given as may ultimately be binding upon the Applicant on the decree. 11.In the instant case, the impugned judgment was delivered on 5th September, 2025. The Applicant was granted stay of execution for 45 days. The present application was filed on 16th October, 2025. I therefore find that the application was filed few days before the stay granted lapsed and therefore there was no delay in filing it. 12.On whether the Applicant has demonstrated that he will suffer substantial loss, it is important to note that the Applicant’s family and that of the Respondents have been staying on the suit property for over a half of a century. Both families have developed structures including permanent buildings. The court ruled that Ndinda Muasa and Mukulu Kaula should share the suit property equally and the Applicant should give Serah Mueni Muasa her 9 acres which she purchased from him. 13.Even if the suit property was to be shared equally, the family of Ndinda Muasa will get about 14½ acres and that of Mukula Kaula will have 14½ acres. Serah Mueni Muasa will have her 9 acres from the share of Mukulu Kaula as it is the Applicant who sold the 9 acres to her. There is no evidence that the Respondents will sell their portion upon being granted. This is because they have lived there for over 50 years. If the Applicant succeeds in his appeal, the title will revert to Mukula Kaula and this will not render the appeal nugatory. 14.In the case of Mukuna v Abuoga (1988) KLR. It was held that“......substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore, it is necessary to preserve the status quo.” 15.I have found that the Applicant will not suffer any substantial loss which will render the appeal nugatory absent stay. As demonstration of substantial loss is the cornerstone for grant of stay pending appeal and the Applicant having not demonstrated such loss, I find that the application is devoid of merit. I proceed to dismiss the same with costs to the Respondents.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 21ST DAY OF MAY, 2026.....................................HON. E. O. OBAGAJUDGEIn the presence of:Ms. Nzilani for Appellant/Applicant.Court Assistants - Kilonzo and Musyoki.