https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3360

Benson (Suing on Behalf of the Estate of Benson Mbuuri alias Benson M’buuri M’nchebere alias Kathakai Benson M’buri – Deceased) v Kabiti (Sued as the Legal Representative of M’mworia M’mukangu - Deceased) & 3 others (Environment and Land Appeal E006 of 2024) [2026] KEELC 3360 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3360 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E006 of 2024 BM Eboso, J June 2, 2026 Between Lydia Kanario Benson (Suing on Behalf of the Estate of Benson Mbuuri alias Benson M’buuri M’nchebere alias Kathakai Benson M’buri – Deceased) Appellant and Moses Munene Kabiti (Sued as the Legal Representative of M’mworia M’mukangu - Deceased) 1st Respondent The Ministry of Lands and Physical Planning 2nd Respondent Land Adjudication and Settlement Officer Ruiri/Rwarera, Imenti North & South, Central Imenti & Buuri 3rd Respondent The Hon. Attorney General 4th Respondent Ruling 1.Falling for determination in this ruling is the notice of motion dated 23/3/2026, brought by M’Mworia M’Mukangu through Moses Munene Kabiti [also identifying himself in the application as Martin Munene Kabiti]. Through it, the applicant seeks an order staying execution of the judgment of this court, dated 13/4/2026, pending the hearing and disposal of an appeal in the Court of Appeal. The application is vehemently opposed by the estate of the late Benson Mbuuri. The key question to be determined in the ruling is whether the application meets the criteria upon which this court exercises jurisdiction to grant an order staying execution of its judgment/decree/order pending the hearing and determination of an appeal in the Court of appeal. 2.The application was premised on the grounds outlined in the motion and in the three affidavits sworn by Moses Munene Kabiti on 23/4/2026; 5/5/2026; and 8/5/2026 respectively. It was canvassed through oral submissions. The case of the applicant is that he is the registered proprietor of land parcel number Meru Central/Ruiri Rwarera/2107 measuring 13.80 acres. Vide a judgment dated 13/4/2026, this court allowed the appellant’s appeal and decreed cancellation of the land register and the title relating to Meru Central/Ruiri Rwarera/2107 and rectified the register relating to parcel number Ruiri Rwarera/130, belonging to the appellant, to reflect its acreage as 14 acres. He adds that the court granted an order of permanent injunction restraining him against interfering with the 14 acres. 3.The applicant states that he was aggrieved by the judgment of this court and he filed a notice of appeal signifying a genuine and bona fide intention to appeal against the judgment. He adds that in execution of the judgment, the appellant has entered the suit land and has embarked on acts of destruction, including the demolition of a kitchen structure on the suit land and destruction of the gate leading to the suit land. He contends that the above acts constitute substantial loss. The applicant adds that the intended appeal raises substantial, weighty and arguable points of law which deserve to be heard and determined by the Court of Appeal. He urges the court to grant the order of stay of execution. 4.The appellant opposed the application through a replying affidavit dated 5/5/2026; a supplementary affidavit dated 11/5/2026; and oral submissions tendered in the virtual court on 11/5/2026. Her case is that the judgment of this court was executed in terms of the decree of the court prior to the filing of the present application. She contends that the applicant has never been in possession of the suit land, adding that it was due to this fact that the applicant issued to her the eviction notice that triggered the suit that culminated in this appeal. It is her case that this court having granted her a permanent injunction against the applicant, it would be irregular to grant the applicant a stay order in relation to land that has always been in possession of the family of the late Benson Mbuuri as that would amount to eviction of the family. She urges the court to reject the application. 5.The court has considered the application; the response to the application; and the parties’ submissions on the application. As pointed out in the opening paragraph of this ruling, the single question to be determined in the ruling is whether the application meets the criteria upon which this court exercises jurisdiction to grant an order of stay of execution of its judgment/decree/order pending the hearing and disposal of an appeal by the Court of Appeal. 6.The relevant criteria has been legislated under Order 42 rule 6 (2) of the Civil Procedure Rules, which provides as follows:“No order for stay of execution shall be made under subrule (1) unless—a.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; andb.such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 7.The impugned judgment was rendered on 13/4/2026. The application under consideration was filed on 23/4/2026. A period of 10 days (from the date of the impugned judgment) lapsed before the application was lodged. The court finds that there was no inordinate delay in bringing the application. 8.On substantial loss, the applicant argued that if the appellant takes possession of the suit land and the appeal succeeds in the Court of Appeal, there will be no land for the applicant. The applicant emphasized that he took possession of the suit land upon delivery of the judgment of the Lower Court, hence the need for stay of further execution of the decree of this court. The appellant contests the assertion that the applicant has been in possession of the suit land and contends that the applicant is trying to obtain a stay order for the purpose of gaining access into the suit land and evicting the family of the late Mbuuri. 9.The court has considered the question of substantial loss. First the appellant has presented evidence showing that the judgement of this court has been fully executed in terms of cancellation/rectification of the relevant land registers and survey maps. The plea for a stay order at this point has, to the above extent, been overtaken by events. What may be available to the applicant at this point is an appropriate conservatory or status quo order under rule 5(2)(b) of the Court of Appeal Rules 2022, which is only available in the Court of Appeal. 10.On stay of the permanent injunction, the applicant has not presented evidence of any permanent or substantial development on the suit land, which at this point is registered in the name of Lydia Kanario Benson. He has also not presented any evidence supporting the allegation that the family of the late Mbuuri was evicted from the suit land pursuant to the now vacated judgment of the trial court. In the absence of evidence of any permanent or substantial development by the applicant; and in the absence of evidence of occupation of the suit land by the applicant, I do not think the applicant has, in the circumstances of the present application, demonstrated evidence of substantial loss to warrant stay of the injunctive limb of the decree. 11.On security, the court went out of its way to grant the applicant leave, suo motto, to file a supplementary affidavit to place before court evidence-based proposals on security. The applicant was expected to place before court valuation reports relating to the suit land and to the parcel that he is offering as security. He has not done that. He is simply offering a title relating to 0.066 acres located in Nkando part of Kiirua but has not told the court what the value of this small piece of land is. In the circumstances, I do not think the applicant gave serious attention to the requirement for security under Order 42 rule 6(2) of the Civil Procedure Rules. 12.Taking all the above into account, I do not think the application under consideration has satisfied the criteria stipulated under Order 42 rule 6 (2) of the Civil Procedure Rules. The result is that the application is declined. The applicant shall bear costs of the application. 13.Lastly, it has emerged during today’s proceedings that Mr Kabiti’s first name is Moses. It is unclear why he identified himself in the application as Martin. Secondly, it has emerged that M’Mworia M’Mukangu is now deceased. What is not clear is whether the person litigating on behalf of the estate of the late M’Mukangu has a grant under the relevant law of succession. I will not say more because parties have not canvassed the issue before this court. DATED, SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE, 2026.B M EBOSO [MR]ELC JUDGE