https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3120

M’Atheru v M’Mukaria (Environment and Land Appeal 46 of 2026) [2026] KEELC 3120 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3120 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal 46 of 2026 JO Mboya, J May 21, 2026 Between Albiono Munjuri M’Atheru Appellant and Joel Ntonja M’Mukaria Respondent Ruling 1.What is before me is the Notice of Motion Application dated the 04.05.2026 brought pursuant to the provisions of Order 42, Rule 6; and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010. The reliefs sought vide the application are:i.That this Application be certified as urgent and interim orders be granted in the first instance pending service and hearing of the application.ii.That this Honourable Court be pleased to order a stay of execution of the judgment delivered on 08.04.2026 by Hon. Dominic Macharia, in the ELC Court of Kenya at Maua vide ELC Case No. 137 of 2018 pending the hearing and determination the application.iii.That this Honourable Court be pleased to order a stay of execution of the judgment delivered on 08.04.2026 by Hon. Dominic Macharia, in the ELC Court of Kenya at Maua vide ELC Case No. 137 of 2018 pending the hearing and determination the appeal.iv.That the status quo currently existing on the Appellant’s suit property number Nyambene/Kirindine “A”/1 be maintained until the Appeal is heard and determined.v.That this Honourable court be pleased to grant any other orders and/or relief befitting the circumstances.vi.That the costs of this application be provided for. 2.The subject Application is premised on the various grounds which have been enumerated in the body thereof. The grounds include: The Applicant was sued by the Respondent herein in the Lower Court at Maua; the suit before the lower court; namely; Maua CMELC No. 137 of 2019 was heard and determined; the court rendered a Judgement on the 08.04.2026; the court directed that the Applicant be evicted from the suit land; the Applicant was aggrieved by the decision and decree of the lower court; the Applicant has since filed the subject appeal; the Applicant is apprehensive that the decree of the lower court may be executed before the appeal is heard and determined; and the execution of the decree shall occasion substantial loss to the Applicant. 3.Additionally, the Applicant has posited that: the suit property was illegally transferred to and registered in the name of the respondent; the failure to grant an order of stay of execution shall destroy the crux of the appeal. Furthermore, it has been posited that the Applicant has established a lawful basis to warrant the grant/ issuance of the orders of stay of Execution sought. 4.The application is supported by the affidavit sworn on the 04.05.2026. The deponent of the affidavit has thereafter annexed various documents inter alia a copy of the Judgment of the lower court and a copy of the memorandum of appeal. In addition, the deponent has reiterated and re-affirmed the grounds contained in the body of the application. 5.The Respondent filed a replying affidavit sworn on the 20.05.2026 and wherein the deponent has averred thus: The suit property lawfully belongs to and is registered in the name of the Respondent; the Respondent is the lawful owner of the suit property; the Respondent is entitled to exclusive possession and occupation of the suit property; the grant of the orders of stay of execution shall prejudice or negate the right of the Respondent over and in respect of the suit property; the Respondent is entitled to benefit from the fruit[s] of the Judgment; and the Applicant has not established/proven sufficient basis to warrant the grant of the orders sought. 6.As a result of the foregoing, the Respondent has invited the court to find and hold that the Applicant has failed to establish/satisfy the ingredients that underpin the grant of the orders of stay of execution pending the hearing and determination of an appeal. To this end, the court has been implored to dismiss the application and to award costs to the Respondents. 7.The application came up for hearing on the 21.05.2026; whereupon the advocates for the parties intimated that the same were ready to proceed with the hearing. Thereafter, the court proceeded to and issued the directions as pertains to the hearing and disposal of the application. 8.Learned counsel for the Applicant adopted the grounds at the foot of the application; reiterated the contents of the supporting affidavit; and thereafter highlighted three [3] key issues. The issues are: the Applicant has demonstrated that substantial loss shall occur or accrue if the orders sought are not granted; the application has been mounted without undue delay; the Applicant is ready and willing to provide security; and that sufficient cause has been demonstrated. 9.Learned counsel for the Respondent adopted the contents of the replying affidavit and thereafter canvassed and highlighted three [3] key issues. The issues are: The Applicant has not established/proven that substantial loss shall accrue or otherwise; the grant of the orders sought shall negate/defeat the respondent’s property right[s] to the suit property; and the Applicant has not made any offer as to provision of security in terms of Order 42 Rule 6 [2] [b] of the Civil Procedure Rules. 10.As a result of the foregoing, learned counsel for the Respondent has invited the court to find and hold that the in the absence of evidence of substantial loss, no basis exists to warrant the issuance of the orders sought. For good measure, it was posited that substantial loss is the cornerstone that underpin the grant of Orders of stay of execution pending appeal. 11.Having reviewed the notice of motion application; the supporting affidavit; the annextures thereto; the replying affidavit; and upon consideration of the submissions canvassed by/on behalf of the respective parties, three [3] key issues crystalize for consideration and determination. The issues are: Whether the Applicant has established sufficient cause or otherwise; Whether the Applicant shall be disposed to suffer substantial loss or otherwise; and What security [if at all] ought to be decreed in the circumstances of the case. 12.Regarding the first issue, it is important to highlight that any Applicant who seeks to procure and obtain an order of stay of execution pending the hearing and the determination of an appeal, the current Applicant not excepted, is obligated to demonstrate the existence of inter alia sufficient cause. [See the provisions of Order 42, Rule 6 [1] of the Civil Procedure Rules, 2010]. 13.As pertains to the subject matter, it is imperative to underscore that the Applicant has since filed/lodged an appeal vide the memorandum of appeal dated 04.05.2026. The memorandum of appeal was filed timeously and within the prescribed duration in line with the provisions of Section 79 G of the Civil Procedure Act, Chapter 21 Laws of Kenya. I beg to highlight that the filing of the appeal and which appeal raises arguable issues constitute a sufficient cause or basis in the eyes of the law. 14.Be that as it may, I hasten to state that the mere fact that the appeal raises arguable issues, does not by itself denotes that the appeal shall succeed. Suffice it to state that whether or not the appeal will succeed, is a matter to be addressed during the plenary hearing. Simply put, it is my finding that sufficient cause has been established. 15.Next is the issue of substantial loss. The Applicant has contended that the lower court issued an order of eviction and that there is a likelihood of the eviction orders being executed during the pendency of the appeal. 16.It has been contended that the execution of the decree and the eviction of the applicant, shall no doubt occasion substantial loss. 17.Furthermore, the Applicant has submitted that same operates a petrol station on LR No. Nyambene/Kirindine A/1, which borders the suit property, while same uses a portion of the suit property for storage purposes. In particular, it has been posited that the Applicant uses the suit property or a portion thereof to garage vehicles. To this end, it was averred that the imminent eviction shall prejudice the Applicant. 18.It is conceded by the Respondent that indeed the Applicant is using a portion of the suit property. Nevertheless, it was contended that the Applicant has merely fenced the suit property and there are no structures thereon. 19.Despite the position taken by learned counsel for the respondent, there is no gainsaying that the lower court decreed eviction. Suffice it to underscore that eviction entails the removal of the Applicant and the demolition of [sic] the structures erected on the suit property. 20.To my mind, eviction together with the consequences thereof shall no doubt expose the Applicant to substantial loss. It may well be said that the Respondent is the lawful owner of the suit property on the basis of the decree of the lower court. However, there is no gainsaying that the decree of the lower court may or may not be affirmed. The outcome shall depend on the conclusion of the appeal. 21.However, what comes to mind is the consequences of the eviction, which may be far reaching. I beg to underscore that if the eviction is undertaken and thereafter this court finds that the decree of the lower court was erroneous [which may be a possibility] then the loss suffered by the appellant may not be remedied; or compensable in monetary term[s]. It is such loss that must be averted. [See Kenya Shell Limited versus Benjamin Karuga Kabiru and another [1986] eKLR; and James Wangalwa versus Agnes Naliaka Cheseto [2012] eKLR, respectively]. 22.As concerns security for the due performance of the decree that may arise, I wish to state that the question of provision of security belongs to the court. It is the court that is chargeable with the discretion to discern whether or not security ought to be provided. Furthermore, it is the court which is called upon to speak to the quantum of the security and the nature of the security [if any] to be provided for. [See Order 42 Rule 6 [2] [b] of the Civil Procedure Rules.] 23.Be that as it may, there has been a misconception that an Applicant must indicate readiness and willingness to provide security and that where an Applicant does not make such intimation, then the Applicant cannot partake of an order of stay of execution. I am afraid that the provisions of the law do not make it mandatory for an Applicant to intimate readiness or willingness to provide security. The intimation of readiness; or willingness to provide security is a matter of practice, but not one of Law. It is equally a measure to ascertain good faith on the part of the Applicant. 24.Nevertheless, there is no gainsaying that whether or not an Applicant intimate[s] willingness to provide security, or otherwise; the court is still enjoined to engage with the question of security. The question of security falls at the discretion of the court. The court cannot forsake the exercise of the discretion on security, merely because [sic] the Applicant did not make the intimation at the foot of the application. If the Court were to do so, then the Court would be abdicating itself constitutional and Judicial mandate. 25.Additionally, there has also been a misconception that where the decree being appealed against is non-monetary in nature, then the Applicant is not called upon to provide security. Notably, learned counsel for the Applicant propagated this position. Sadly, the contention under reference is not borne out by the provisions of Order 42 Rule 6 [2] [b] of the Civil Procedure Rules, 2010. 26.With respect, the submission by learned counsel for the Applicant was/is misconceived. 27.Be that as it may, it is important to reiterate that even as the court engages with the question of security, it must be recalled that the security [if any] to be ordered must not be onerous; or unreasonable. The security must not deprive the Applicant of the right to pursue the undoubted right of appeal. In addition, the security must not negate the right of access to justice. [See Article 48 of the Constitution, 2010]. 28.The parameters to be applied and adopted while engaging with the question of security were highlighted by the Court of Appeal in the case of Gitahi versus Warugongo [1988] eKLR. 29.Notably, the court pointed out that security to be decreed/ directed must be reasonable, taking into account the circumstances of each case, including the nature of hardship likely to be suffered by the adverse Party/ the Respondent. 30.Based on the guidance by the Court of Appeal in the decision [supra], I am minded to and do hereby decree that the Applicant shall provide security. The said security shall suffice to atone for any loss that may accrue to or be suffered by the Respondent during the pendency of the appeal. Moreover, I hold the opinion that the sum of Kshs. 500,000/= only will suffice on account of security. Conclusion 31.Flowing from the analysis in the body of the ruling, it must have become apparent that the Applicant has established and demonstrated a basis to warrant the grant of orders of stay of execution pending the hearing and determination of the appeal. Suffice it to posit that unless the stay is granted, the imminent eviction may proceed and thereafter untold suffering may arise during the pendency of the appeal. 32.It is settled that the court is enjoined to preserve the substratum of the appeal. The preservation of the substratum calls for issuance of an order of stay of execution in respect of the instant matter. Final orders: 33.Consequently, and in the premises, the final orders that commend themselves to the court are:i.The Application dated 04.05.2026 be and is hereby allowed.ii.There be and is hereby granted an order for stay of execution of the judgment and the decree of the lower court pending the hearing and determination of the subject appeal.iii.The Applicant shall provide security in the sum of Kshs. 500,000/= only to be deposited in an escrow account in the names of the advocates for the parties and the account shall be opened and operationalized within 45 days from the date hereof.iv.The escrow account shall be opened and operationalized in reputable bank or financial institution in the Republic of Kenya.v.In default to provide security within the set timelines, the order of stay of execution shall lapse automatically and the Respondent shall be at liberty to execute.vi.Costs of the Application be and are hereby awarded to the Respondents.vii.The Costs in terms of clause [vi] are assessed to the sum of Kshs. 15,000/= only and the same shall be payable within 14 days. 34.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF MAY, 2026OGUTTU MBOYA, FCIArb;CPM [MTI-EA]JUDGEIn the presence of:Court Assistant: ZakayoMs. Nkirote holding brief for Mr. Mutuma for the ApplicantMr. Nkunja Kaberia for the Respondent