https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4760

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLA NO. E009 OF 2026** **LUCY MUTHONI MAINA……………………………..…..……….APPELLANT** **VERSUS** **PETER GICHIRI WACHIRA………………………………..…1ST RESPONDENT** **DISTRICT LAND REGISTRAR, THIKA……………….……..2ND RESPONDENT** **RULING** 1. This Ruling is in respect of the Notice of Motion Application filed by the Appellant dated 11/02/2026 brought under Order 42, Rule 6 of the Civil Procedure Rules and Section 3 and 3A of the Civil Procedure Act under Article 25(c) and Article 159 (2)(d) of the Constitution seeking the following: 2. Spent. 3. **THAT** pending the hearing and determination of the Application herein this Honourable Court be pleased to grant the Applicant a stay of execution of the Judgment and Decree given on 2nd February, 2026 pending the hearing and determination of this Application on such terms as it deems fit. 4. **THAT** pending the hearing and determination of the Appeal filed herein, this Honourable Court be pleased to grant the Applicant a stay of execution of the Judgment and Decree given on 2/02/ 2026 given in the **Chief Magistrates Court Ruiru in MCELC No. 124/2020** on such terms as it deems fit. 5. **THAT** pending the hearing and determination of the Application herein and the Appeal filed herein this Honourable Court be pleased to grant a temporary injunction restraining the 1st Respondent from selling, transferring, gifting, charging, letting or in any manner alienating the parcels of land reference numbers **Ruiru/Kiu Block 2/18422 & 18423**. 6. **THAT** this Honourable Court do grant such further or other orders to preserve the subject matter of the appeal as it deems fit in the interest of justice. 7. **THAT** the cost of this Application be in the cause. 8. The Application is supported by the Affidavit of **LUCY MUTHONI MAINA** where she deposeth that she is the Appellant herein and is fully competent to swear the Supporting Affidavit arising from **Ruiru MCELC No. 124 of 2020.** She avers that the 1st Respondent instituted a suit against her concerning parcels of land reference numbers Ruiru/Kiu Block 2/18422 and 18423, the pleadings of which are annexed as **"LMM-1"**. By a Judgment delivered on 2/02/2026, the trial Court found for the 1st Respondent and dismissed the Deponent’s Counterclaim, as evidenced by the Judgment annexed and marked **"LMM-2"**. Being highly aggrieved by the said decision, the Appellant has preferred an Appeal against the whole of the Judgment, raising substantial Grounds of Appeal as set out in the Memorandum of Appeal annexed hereto and marked **"LMM-3"**. 9. The Deponent further deposes that the resulting Decree seeks to lift the cautions she had placed on the suit properties to safeguard them from alienation, copies of the cautions and official searches being annexed as **"LMM-4"**. She expresses well-founded apprehensions that the 1st Respondent has already secured a buyer who has fenced off the properties, and is in the process of registering the Decree to effect a transfer. Crucially, the suit lands host the Deponent’s matrimonial home where she resides with her children. 10. She states that unless a stay of execution is granted, the 1st Respondent will proceed to evict them and transfer the land to third parties, thereby rendering her family destitute and rendering the substratum of the pending Appeal completely nugatory. The Appellant emphasizes that the application is brought timeously, in good faith, and that she is ready to abide by any conditional terms imposed by the Honourable Court to preserve the subject matter in the interest of justice. 11. The Application is opposed by the 1st Respondent, Peter Gichiri Wachira who swore a Replying Affidavit sworn on 24/04/2026. He depones that the application is frivolous, vexatious, and a gross abuse of the Court process. He contends that the Motion is built upon blatant falsehoods regarding an immediate threat of eviction, which he puts the Applicant to strict proof thereof. The Respondent underscores that the trial Court in **Ruiru MCELC No. 124 of 2020** properly determined the question of ownership, delivering a Judgment on 2/02/2026 which declared the suit properties, namely **Ruiru/Kiu Block 2/18422 and 18423**, as his sole and separate property. This Judgment, annexed and marked **"PGM-1"**, explicitly ordered the lifting of the unlawful cautions registered by the Applicant, an exercise that has since been successfully executed prior to the active interim orders. 12. The Respondent further deposeth that the Applicant has deliberately convoluted and misdirected facts to mislead this Honourable Court. He clarifies that land parcel number Ruiru/Kiu Block 2/18423 is free, completely vacant, devoid of any developments, and has already been sold to a third-party purchaser who has since taken possession and fenced it off, as supported by the mutation form and photographic evidence annexed under **"PGM-1"**. Conversely, the Respondent affirms that the house where the Applicant currently resides rent-free is located entirely on parcel number Ruiru/Kiu Block 2/18422. To demonstrate the distinct, physical separation between the developed land and the vacant parcel sold to the third party, the Respondent hooks onto the annexures under **"PGM-1"** containing the official search dated 13/02/2026 alongside separate photographs depicting the vacant plot on Block 2/18423 and the residential house standing on Block 2/18422. 13. In seeking the outright dismissal of both the application and the underlying appeal with costs, the Respondent states that the Applicant’s claim is fundamentally misplaced in law. He traces his root of title to an inheritance from his late father following a subdivision under a grant of letters of administration, noting that the Applicant was never listed as a beneficiary. He contends that any claims asserting matrimonial rights under the Matrimonial Property Act, 2013 must strictly be litigated within a Court of competent jurisdiction in the family division, conditional upon the filing of divorce proceedings to establish the existence of a valid marriage. Consequently, the Respondent prays that the interim orders be vacated to prevent the substratum of his lawful sale from being unjustly impeded by an alarmist and jurisdictionally defective application. 14. The Application was canvassed by way of written submissions. The Applicant filed their written submissions dated 4/05/2026 and despite not filing any response to the Application, the 2nd Respondent filed their submissions dated 26/05/2026. The 1st Respondent did not as at the time of writing this Ruling file any submissions. 15. submissions are anchored on a fervent prayer for a stay of execution of the Judgment and decree delivered on 2nd February 2026 in **Ruiru MCELC No. 124 of 2020**, alongside an order for a temporary injunction to preserve the suit properties, namely land parcels Ruiru/Kiu Block 2/18422 and 18423, pending the hearing and determination of the appeal. It is the Appellant’s case that the learned trial Magistrate fundamentally erred in law and fact by dismissing her counterclaim and ordering the lifting of cautions she had lawfully registered to protect her matrimonial home. The Appellant contends that the appeal raises substantial and highly arguable legal issues regarding property rights and family protection, satisfying the primary threshold of an arguable appeal. To support this position, the Appellant cites the Supreme Court precedent in **Freedom Limited v Omar Awadh Mbarak [2024] KESC 36 (KLR)**, which restates the foundational principles derived from the **Munya v. Kithinji & 2 others (Petition 2B of 2014) [2014] KESC 38 (KLR)**, requiring an Applicant to demonstrate that the intended appeal is arguable, that it risks being rendered a mere academic exercise if a stay is withheld, and that the orders sought conform with the broader public interest. 16. In addressing the strict statutory criteria governing stays of execution pending appeal under Order 42, Rule 6 of the Civil Procedure Rules, the Appellant maintains that she has satisfied all conditions sequentially. On the prerequisite of substantial loss, she deposes that the decree directly threatens the sanctuary of her matrimonial home, exposing her and her children to imminent eviction and permanent alienation of their residence. The Appellant cautions that this threat has crystalized past mere speculation, given that the 1st Respondent has already secured a buyer who has fenced off the property and is aggressively registering the decree. 17. To emphasize that a stay must intervene to prevent an irreversible alteration of the status quo, the Appellant relies on **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR**, which posits that while execution is a lawful process, substantial loss arises where the execution creates a state of affairs that irreparably negates the very essential core of the Applicant's appeal, thereby rendering it completely nugatory. 18. The 2nd Respondent the Land Registrar of Thika, fundamentally opposes the Appellant’s Notice of Motion dated 11/02/2026, submitting that the Applicant has failed to satisfy the singular threshold required to warrant the exercise of this Honourable Court's judicial discretion. The Registrar outlines the procedural history, noting that the underlying dispute in **Ruiru MCELC case number 124 of 2020** culminated in a Judgment on 2/02/2026 declaring land parcel Ruiru/Kiu Block 2/18423 to be the sole and separate property of the 1st Respondent, while concurrently dismissing the Applicant’s matrimonial property counterclaim. 19. The 2nd Respondent, joined to the suit solely in a statutory capacity as the custodian of the land register, highlights that the Applicant has introduced frivolous and materially deceptive claims. Specifically, the Registrar underscores that while the Applicant asserts her matrimonial home sits across both parcels, the true subject matter of the dispute Block 2/18423 is completely vacant and detached from Block 2/18422, where the residential home actually stands. 20. On whether the application has met the threshold for Order 42 Rule 6, the Registrar emphasizes that the Applicant has failed to establish that she will suffer any substantial loss if the stay is withheld. Citing the case of **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR)**, the 2nd Respondent submits that execution is a lawful process and the mere threat or initiation of it does not amount to substantial loss. Instead, an Applicant must demonstrate specific factors showing that execution will irreparably upend or negate the very essential core of the appeal. The Registrar argues that because the disputed vacant parcel has been physically and legally separated from the Applicant's actual dwelling, her assertions of imminent harm are rendered entirely nugatory, meaning that if the appeal succeeds, the status quo can easily be undone without prejudice. 21. The 2nd Respondent further implores the Court to balance the competing interests of the parties, reminding the Court that a successful litigant should not be arbitrarily denied the fruits of their Judgment. Drawing guidance from **Jaber Mohsen Ali & Another v Priscillah Boit & Another [2014] KEELC 132 (KLR)**, the Registrar notes that while the preservation of the substratum of an appeal is critical, it must be balanced against the 1st Respondent’s clear entitlement to enjoy his proprietary rights. Relying on **Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)**, the 2nd Respondent argues that where an application merely parrots the statutory text without providing precise factual particulars of the alleged loss, it must fail out of hand. 22. Evoking the maxim that he who seeks equity must come with clean hands, and pointing to **Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] KEHC 8358 (KLR)** regarding the Court's strict power over security, the Registrar concludes that due to the Applicant's deliberate concealment of material facts and lack of an arguable case, the application should be dismissed with costs following the event. **Analysis and Determination** 1. The Appellant’s plea for a stay of execution and injunctive relief under Order 42, Rule 6 of the Civil Procedure Rules is heavily predicated on the preservation of what she characterizes as her matrimonial home situated on land parcels Ruiru/Kiu Block 2/18422 and 18423. She asserts that the impending registration of the trial Court’s decree, which ordered the removal of her cautions, will trigger an immediate alienation of the land to a third party and render her family destitute. 2. Conversely, the 1st Respondent, robustly supported by the 2nd Respondent (the Land Registrar of Thika), deconstructs this narrative by demonstrating a material physical and legal variance between the two properties. The Respondents establish that land parcel Block 2/18423 is free, vacant, inherited land that has already been alienated to a third party, while the Applicant’s actual residence stands unaffected on Block 2/18422. This crucial factual dichotomy effectively isolates the legal operational matrix of the application, forcing the Court to weigh a generalized claim of domestic displacement against verified, distinct proprietary facts. 3. The distinct issues arising for determination before this Honourable Court are: ***whether the Appellant has demonstrated sufficient cause and met the mandatory statutory thresholds under Order 42, Rule 6 of the Civil Procedure Rules to warrant a stay of execution pending appeal****,* and***consequentially, which party should bear the costs of this application.*** 4. In evaluating these issues, this Court must look past the mere procedural compliance of the application which was admittedly filed timeously within nine days of the impugned Judgment and strictly interrogate the bedrock requirement of substantial loss. It is trite law that the mere threat of execution, or even its commencement, does not legally constitute substantial loss because execution is inherently a lawful process. As famously stated by Gikonyo J. in **National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited & Another [2014] eKLR**: ***"A stay of execution is not a right available to any defeated litigant as a matter of course. It is a serious judicial intervention which acts as a clog on the right of a successful party to enjoy the fruits of his Judgment. The Applicant must establish distinct, factual particulars of substantial loss; a mere singing of the song of substantial loss without clear evidence will not suffice to move the Court to exercise its discretion in his favour."*** 1. A critical analysis of the pleadings reveals that the Appellant has failed to discharge the burden of proving that specific, irreversible loss will occur if the stay is denied. The Land Registrar’s official records and photographic evidence conclusively demonstrate that the matrimonial home is exclusively situated on land parcel Ruiru/Kiu Block 2/18422, where the Appellant's possession continues to be quiet and undisturbed. 2. The dispute determined by the trial Court primarily centered on the lifting of an unlawful caution registered against the vacant, separate parcel, Block 2/18423. By asserting that her home spans across both properties, the Appellant engaged in a calculated concealment of material facts, actively misleading the Court to engineer an artificial sense of urgency and distress. It is a foundational principle of equity that he who comes to equity must come with clean hands. 3. Where an Applicant is found to have suppressed material facts to procure an equitable remedy, the Court is legally bound to decline its discretionary assistance. Because land parcel Block 2/18423 is vacant and separate, any successful determination of the appeal in the Appellant's favor can easily be remedied by financial restitution or reversal of title registries, meaning the appeal is not at risk of being rendered nugatory. This position aligns seamlessly with the holding of Ringera J. (as he then was) in ***Global Tours & Travels Limited v Nairobi Muriu Market & 2 Others [2005] eKLR***, where it was stated: ***"The Court's discretion to grant a stay of execution is a judicial one and must be exercised on sound legal principles. Where an Applicant's claim of substantial loss is found to be based on an untruth or a concealment of the true factual status of the suit property, such an application loses all equitable merit. Litigation must have an end, and a successful party should not be held back from the fruits of their Judgment by an application cloaked in sensationalism but completely hollow on the facts."*** 1. Consequently, this Court finds that the Appellant’s Notice of Motion dated 11/02/2026 lacks merit, is technically incompetent, and fails to satisfy the mandatory conditions required for the grant of a stay of execution pending Appeal. Accordingly, the Court issues the following orders: 2. ***THAT the Appellant’s Notice of Motion Application dated 11/02/2026 be and is hereby dismissed in its entirety.*** 3. ***THAT the interim stay orders and temporary injunctions issued by this Honourable Court on 12/02/ 2026 be and are hereby wholly vacated and set aside.*** 4. ***THAT the 2nd Respondent (the Land Registrar of Thika) shall be at absolute liberty to proceed with and finalize the execution of the trial Court's Decree given on 2nd February 2026 in Ruiru MCELC No. 124 of 2020, specifically regarding the lifting of cautions and registration of transfers on land parcel Ruiru/Kiu Block 2/18423.*** 5. ***THAT the costs of this Application are awarded to the 1st and 2nd Respondents, to be borne by the Appellant/Applicant.*** 6. ***Mention for directions on the disposal of the Appeal shall be on 26/10/2026.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON** **THIS 21ST DAY OF JULY 2026.** ………………….. **MOGENI J** **JUDGE** **In the presence of**:- Mr. Mwangi Wahome for the Appellant Mr. Ayebei holding brief for Mr. Oyugi for the 1st Respondent Miss Mwangi holding brief for Mr. Motari for the 2nd Respondent Mr. Melita - Court Assistant ………………….. **MOGENI J** **JUDGE**