https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4044

Matingo & another v Mutisya & 2 others (Environment and Land Case E096 of 2021) [2026] KEELC 4044 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4044 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case E096 of 2021 NA Matheka, J July 2, 2026 Between John Muthiani Matingo 1st Plaintiff Peter Mumo Mutwiwa 2nd Plaintiff and Jackson Munyao Mutisya 1st Defendant Muoka Matheka 2nd Defendant Kioko Matheka 3rd Defendant Ruling 1.The application is dated 16th December 2025 and is brought under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act, and Article 159 of the Constitution of Kenya seeking the following for orders; 1.The application be certified urgent and be heard on priority basis and service of the same be dispensed with in the first instance. 2.The firm of B.M Mung’ata & Company Advocates be granted leave to come on record for the 2nd and 3rd Defendants/Applicants. 3.That, there be stay of execution of the orders issued by Hon. Christine Ochieng on 18/09/2025 in Machakos ELC Case Number E096 OF 2021 John Muthiani Matingo & Peter Munyao Mutwiwa vs. Jackson Munyao Mutisya & 2 others pending hearing and determination of this application. 4.That, there be stay of execution of the orders issued Hon. Christine Ochieng on 18/09/2025 in Machakos ELC Case Number E096 OF 2021, John Muthiani Matingo & Peter Munyao Mutwiwa vs. Jackson Munyao Mutisya & 2 others pending hearing and determination of the Nairobi Court of Appeal case number E1076 OF 2025. 5.That costs of this Application be in the cause. 2.The application is supported by the annexed supporting affidavit of Muoka Matheka and grounds that judgment in Machakos ELC case number E096 OF 2021, John Muthiani Matingo & Peter Munyao Mutwiwa vs. Jackson Munyao Mutisya & 2 others was delivered by in Hon. Christine Ochieng on 18th September 2025. That the said judgement declaring that land parcel Mitaboni/Mitaboni/2555 was registered in the name of the late Daniel Matheka in trust for the late Mbai Maingi, and ordered dissolution of the trust, cancellation of title, and eviction of the Applicants. That the Applicant being dissatisfied with the judgment thereto instructed his previous advocates on record to lodge an appeal against the whole of the judgment being Nairobi Court of Appeal case number E1076 OF 2025. That there was no stay of execution orders granted and execution is looming. That the Applicant through their Advocates have already requested for the typed and certified copy of the proceedings and prepared the requisite record of appeal for consideration by the court of appeal Court. That if execution proceeds, the Applicants will suffer irreparably because they will be denied access and use of the suit property as they have been in possession of the property. That further if execution is allowed to proceed the Applicant's appeal will be rendered nugatory as the Respondent may dispose of the suit property before the Appeal is executed. That since there is no stay of execution, there is nothing preventing the Respondents from executing the judgment of the trial court and they have in fact threatened to execute the judgment. That in the event execution issues and the appeal is successful, the applicants will have already been prejudiced heavily because they would have been denied access to their land. That the orders of stay are necessary to preserve the suit property and structures awaiting the determination of the appeal. That the Applicants are ready and willing to abide by any conditions this honourable Court may impose, including provision of security. That this application has been brought without any unreasonable delay. That unless stay of execution is granted, the Applicants stand to suffer substantial loss, including eviction from their homestead and deprivation of land they have occupied for decades. That this application is necessary because an appeal does not operate as stay. That the Applicant has an arguable appeal with high chances of success. 3.I have considered the applications and submissions therein. The principles for granting stay of execution are provided for under Order 42 rule 6 (1) of the Civil Procedure Rules as follows;“No appeal or a second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order, but the Court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred, shall be at liberty, on an application being made, to consider such application and to make such orders thereon as may to it seem just, any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have the orders set aside.”Order 42, rule 6 states:“No order for stay of execution shall be made under sub-rule (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.” 4.The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:1.Substantial loss may result to the applicant unless the order is made.2.The application has been made without unreasonable delay, and3.Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant. 5.The principles governing the exercise of the court’s jurisdiction are now well settled. Firstly, the intended appeal should not be frivolous or put another way, the applicant must show that they have an arguable appeal and second, this Court should ensure that the appeal, if successful, should not be rendered nugatory. These principles were well stated in the case of Reliance Bank Ltd (In Liquidation) vs Norlake Investments Ltd – Civil Appl. No. Nai. 93/02 (UR), thus;“Hitherto, this Court has consistently maintained that for an application under rule 5(2) (b) to succeed, the applicant must satisfy the court on two matters, namely: - 1.That the appeal or intended appeal is an arguable one, that is, that it is not a frivolous appeal, 2.That if an order of stay or injunction, as the case may be, is not granted, the appeal, or the intended appeal, were it to succeed, would have been rendered nugatory by the refusal to grant the stay or the injunction.” 6.The question of stay pending appeal has been canvassed at length in various authorities, such as in the Court of Appeal decision in Chris Munga N. Bichange vs Richard Nyagaka Tongi & 2 Others eKLR where the Learned Judges stated the principles to be applied in considering an application for stay of execution as thus;“……………. The law as regards applications for stay of execution, stay of proceedings or injunction is now well settled. The applicant who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated………” 7.In the case of Mohamed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat (2013) eKLR, the court stated that;“That right of appeal must be balanced against an equally weighty right, that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right …………….” 8.We are further guided by the court’s decision in Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997, at Page 4 as follows:“. . . the mere fact that there are strong grounds of appeal would not, in itself, justify an order for stay. . .the applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the applicant must furnish security, and the application must, of course, be made without unreasonable delay.” 9.I find that the Applicant/Appellant is not guilty of laches as judgement was delivered on 18th September 2025 and the application is dated 16th December 2025. The court entered Judgment against the Appellants/Applicants by declaring that land parcel Mitaboni/Mitaboni/2555 was registered in the name of the late Daniel Matheka in trust for the late Mbai Maingi, and ordered dissolution of the trust, cancellation of title, and eviction of the Applicants. That the Appellants/Applicants herein are in possession of the suit land, the substratum of the appeal and are at risk of being evicted therefrom by the Respondents, unless this Honourable Court intervenes and grants them stay of execution, which actions will render the appeal nugatory and the entire appeal process moot. The Respondents stated that the Notice of appeal is invalid as no fees have been paid. That this application should be filed in the court of Appeal. 10.I find that the grounds of appeal raised in the memorandum of appeal do raise an arguable appeal and I find that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. I find that the applicant has fulfilled the above grounds mentioned to enable me grant the stay. I find that the application is merited and I grant the following orders;1.The firm of B.M Mung’ata & Company Advocates be granted leave to come on record for the 2nd and 3rd Defendants/Applicants.2.That, there be stay of execution of the orders issued Hon. Christine Ochieng on 18/09/2025 in Machakos ELC Case Number E096 OF 2021, John Muthiani Matingo & Peter Munyao Mutwiwa vs. Jackson Munyao Mutisya & 2 others pending hearing and determination of the Nairobi Court of Appeal case number E1076 OF 2025.3.That costs of this Application be in the cause. It is so ordered.DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF JULY 2026.N.A. MATHEKAJUDGE