https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4850

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KERUGOYA** **ELCLA NO. E0044 OF 2025** **JAMES MUTHEE …………………………………………… 1ST APPELLANT** **JOHN MARAKA ………………………………….………. 2ND APPELLANT** **PETER KARIUKI ……………………………………………. 3RD APPELLANT** **VERSUS** **JOSEPH MBURU KIMANI …………………………………… RESPONDENT** **AND** **MARY WAIRIMU KIMANI ……………………………………… APPLICANT** **RULING** ***[Notices of Motion Dated 16th January 2026 & 16th March 2026]*** 1. Mary Wairimu Kimani, the applicant, moved the court through the notice of motion dated 16th January 2026 seeking to be joined in the appeal as an interested party, and for costs. The application is supported by her affidavit sworn on the 16th January 2026, in which she deposed inter alia that the appellants and respondent are her sons; that the appellants and herself resides on **Land Parcel Gichugu/Settlement Scheme/835**, suit property, that is owned by the respondent; that the respondent should consider them for a share of the suit land, and she should be joined as an interested party. 2. The appellants filed the notice of motion dated 16th March 2026 seeking primarily for stay of execution of the orders of 18th September 2018 in **Kerugoya CMELC No. 23 of 2018** pending the earing and determination of the appeal and costs. The application is supported by the affidavit of the appellants sworn on 16th March 2026, in which they inter alia deposed that they filed an appeal against the judgement of 18th September 2025 in **Kerugoya CMELC No. 18 of 2018**; that they have learnt that the respondent has instructed Giant Auctioneers to execute the orders of 18th September 2025 in **Kerugoya CMELC No. 18 of 2018**; that if the said execution takes place they stand to suffer irreparable loss and damages, and their appeal will be rendered nugatory. 1. The respondent opposed the two applications through his replying affidavit sworn on 8th April 2026, inter alia deposing that the order of 18th September 2025 in **Kerugoya CMELC No. 23 of 2018** was only for provision of security in the execution of the decree dated 30th April 2020; that the said decree had been appealed against by the appellants before **Kerugoya ELCA No. 001 of 2020** and **Nyeri Court of Appeal No. 038 of 2023**, which appeals were dismissed for lack of merits; that the application by the appellants is res judicata, an abuse of court, and vexatious; that the decree sought to be stayed was executed and the application is therefore frivolous; that the joinder application as an interested party is misconceived as her quest was dismissed in **Kerugoya ELC No. 256 of 2018**; that both applications should be dismissed with costs. 2. The applicant filed a document dated 14th April 2026 headed *“Interested 3rd Party’s Statements of Evidence*”, among others stating that, she should get three and half acres of the suit property, and the respondent should retain four acres. 3. The two applications were heard together orally on the 16th April 2026. The applicant and appellants supported the two applications. The appellants disclosed that after serving the respondent on 26th March 2026, with the application, he went and demolished their houses. They sought to be allowed to continue staying on the suit property, stating that they had lived there for 44 years. They added that they were aware that the lower court had issued orders for demolition of their houses. 4. The respondent opposed the two applications. He indicated that the appellants’ houses were demolished on 27th March 2026 by the auctioneer, in execution of the lower court order. That no stay of execution had been issued by the time of demolition. That the house of his mother, the applicant, was not demolished, and that she is at liberty to continue living there. He added that the appellants have been aggressive towards him. 5. The issues arising from the two applications for determination by the court are as follows: 1. *Whether the applicant has made out a reasonable interest to be joined in the appeal.* 2. *Whether the appellants have met the threshold for stay of execution order to issue.* 3. *Who pays the costs in the two applications?* 6. The court has carefully considered the two applications, affidavit evidence filed, oral submissions by the parties and come to the following findings: 1. That in opposition to the joinder application dated the 16th January 2026, the respondent has in his replying affidavit deposed inter alia that the application is misconceived as her earlier quest was dismissed. He attached a copy of a decree dated 1st December 2016 issued in **Kerugoya ELC No. 256 of 2014** that indicates he was the defendant and the applicant herein was the plaintiff. It is clear the applicant’s claim in that suit was for cancellation of **Parcels Gichugu/Settlement Scheme/4806 to 4814**, and their consolidation to **Gichugu/Settlement Scheme/835**, which is the suit property in this appeal. She also sought for three and a half acres thereof, permanent injunction and costs. The decree proceeds to state that after the suit was heard, it was dismissed and each party was ordered to bear their costs. The applicant and appellants herein have not disputed the contents of the said decree. Therefore, as the applicant’s suit against the respondent over the suit property was dismissed in **Kerugoya ELC No. 256 of 2014**, the court finds that she has failed to demonstrate any outstanding and reasonable interest over the said property that would suffice for her to be joined in this appeal. * 1. The respondent has disclosed through his depositions at paragraphs 3 to 7 of his replying affidavit that **Kerugoya CMELC No. 23 of 2018** was decided on 30th April 2020. He has annexed a copy of the decree issued on 10th June 2020 that confirms that the appellants herein were the plaintiffs, while the respondent herein was the 1st defendant. The decree further confirms that the plaintiffs had sought for cancellation of **Parcels Gichugu/Settlement Scheme/4806** to **4814** and their consolidation to **Gichugu/Settlement Scheme/835;** declaration that the 1st defendant held title to the said land as trustee for himself and plaintiffs; subdivision of the land into two equal shares for themselves and 1st defendant; costs and interests. The decree further confirms that the defendants had filed a counterclaim seeking for eviction of the plaintiffs from the said parcels and costs. * 1. The decree also confirms that vide the judgement delivered on 30th April 2020, the plaintiffs’ suit was dismissed and defendants’ counterclaim allowed. The defendants were granted costs. The court takes note that the appellants have not disputed the contents of the said decree. The respondent has further deposed that the appellants had challenged the judgement of 30th April 2020 through **Kerugoya ELCA No. 1 of 2020**, and subsequently before **Nyeri Court of Appeal No. 038 of 2023** that were dismissed for lack of merits. The appellants have equally not disputed the respondent’s depositions on the two appeals and outcomes. * 1. From the oral submissions by both the appellants and respondent, the eviction orders issued in **Kerugoya CMELC No. 23 of 2018**, was carried out on the 27th March 2026. The appellants’ houses were demolished, effectively removing them from the suit properties. Considering that their claim over the suit property was dismissed 30th April 2020, and their subsequent appeals before this court and the Court of Appeal has come to a cropper, then their application for stay of execution is not only untenable, but also amounts to an abuse of court process. * 1. Having found no merit in the two applications, and considering the history of litigation over the suit properties between the parties herein, I find the appellants and applicant should pay the respondent’s costs, as under **Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya**, costs follow the event, unless where ordered differently on good grounds. I find no reasonable cause to deviate from that statutory edict. 1. Flowing from the foregoing conclusions on the two applications, the court finds and orders as follows: 1. **That the joinder application dated 16th January 2026 is without merit and is dismissed with costs.** 2. **The stay of execution application dated 16th March 2026 is devoid of merit and is also dismissed with costs.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 29TH DAY OF JULY 2026.** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Appellants – Present in person. Respondent –Present in person. Applicant – Present in person. Kinyua/Charles - Court Assistants **S. M. Kibunja** **ELC JUDGE**