[2024] KEELC 7578 (KLR)
The court found that the applicants had lodged a Notice of Appeal and that land matters are emotive, warranting an opportunity for the applicants to ventilate their grievances in a higher court. While the applicants did not demonstrate substantial loss or offer security, the court balanced the interests of justice,...
Source-derived case information.
- Citation
- [2024] KEELC 7578 (KLR)
- Parties
- Plaintiff: Hannah Nyambura Mbagu (Suing on her behalf and as the administrator of the Estate of the Late David Mbagu Kingeche - Deceased); Plaintiff: Agnes Nyambura Mugo (Suing on her behalf and as administrator of the Estate of the Late James Mugo Waweru - Deceased); Plaintiff: Karuthi Karanja; Plaintiff: Hannah Nyambura Mbagu; Plaintiff: Susan Njeri Wainaina (Suing as the administrator of the Estate of the Late Henry Wainanina Kariuki); Defendant: Karura Farmers Company Limited; Defendant: Samuel Kungu; Defendant: Festus Kadenge; Defendant: Grace Gathuri; Defendant: Peter Mugo Mbuthia; Defendant: Peter Mareri; Defendant: Florence Wangui; Defendant: Benjamin Mathingi; Defendant: Peter Mungai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3017 of 1990
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed for 90 days; costs to plaintiffs.
- Judges
- LN Mbugua
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Land Disputes, Discretionary Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hannah Nyambura Mbagu (Suing on her behalf and as the administrator of the Estate of the Late David Mbagu Kingeche - Deceased)
Plaintiff
Agnes Nyambura Mugo (Suing on her behalf and as administrator of the Estate of the Late James Mugo Waweru - Deceased)
Plaintiff
Karuthi Karanja
Plaintiff
Hannah Nyambura Mbagu
Plaintiff
Susan Njeri Wainaina (Suing as the administrator of the Estate of the Late Henry Wainanina Kariuki)
Plaintiff
Karura Farmers Company Limited
Defendant
Samuel Kungu
Defendant
Festus Kadenge
Defendant
Grace Gathuri
Defendant
Peter Mugo Mbuthia
Defendant
Peter Mareri
Defendant
Florence Wangui
Defendant
Benjamin Mathingi
Defendant
Peter Mungai
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the applicants have demonstrated substantial loss if stay is not granted.
- 3 Whether the applicants are required to provide security for due performance.
Ratio Decidendi
The court found that the applicants had lodged a Notice of Appeal and that land matters are emotive, warranting an opportunity for the applicants to ventilate their grievances in a higher court. While the applicants did not demonstrate substantial loss or offer security, the court balanced the interests of justice, the long pendency of the matter, and the need to avoid rendering the appeal nugatory. Consequently, the court exercised its discretion to grant a stay of execution of the judgment for 90 days from the date of the ruling, with costs awarded to the plaintiffs.
Court Disposition
Application for stay of execution allowed for 90 days; costs to plaintiffs.
Orders
- Stay of execution of the judgment dated 3.10.2024 is granted for a period of 90 days from the date of this ruling.
- Applicants shall pay costs of the application to the plaintiffs.
Full Case Text
Judgment text and source record
44 paragraphs
Mbagu (Suing on her behalf and as the administrator of the Estate of the Late David Mbagu Kingeche - Deceased) & 4 others v Karura Farmers Company Limited & 8 others (Environment & Land Case 3017 of 1990) [2024] KEELC 7578 (KLR) (11 November 2024) (Ruling)
Neutral citation: [2024] KEELC 7578 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 3017 of 1990
LN Mbugua, J
November 11, 2024
Between
Hannah Nyambura Mbagu (Suing on her behalf and as the administrator of the Estate of the Late David Mbagu Kingeche - Deceased)
1st Plaintiff
Agnes Nyambura Mugo (Suing on her behalf and as administrator of the Estate of the Late James Mugo Waweru - Deceased)
2nd Plaintiff
Karuthi Karanja
3rd Plaintiff
Hannah Nyambura Mbagu
4th Plaintiff
Susan Njeri Wainaina (Suing as the administrator of the Estate of the Late Henry Wainanina Kariuki)
5th Plaintiff
and
Karura Farmers Company Limited
1st Defendant
Samuel Kungu
2nd Defendant
Festus Kadenge
3rd Defendant
Grace Gathuri
4th Defendant
Peter Mugo Mbuthia
5th Defendant
Peter Mareri
6th Defendant
Florence Wangui
7th Defendant
Benjamin Mathingi
8th Defendant
Peter Mungai
9th Defendant
Ruling
1. Before me is the 2nd and 9th defendants Notice of Motion Application dated 15. 10. 2024 seeking an order for stay of execution of the judgment pending the hearing and determination of the intended appeal. The application is premised on grounds on the face of the application and the supporting affidavit of Samuel Kungu, the 2nd defendant. The applicants contend that they were aggrieved by the judgment of this court delivered on 3. 10. 2024 and they have duly filed a Notice of Appeal. They contend that they stand to suffer irreparable harm if the orders sought are not granted.
2. The 1st, 3rd, 4th & 5th plaintiffs have opposed the application vide the Replying Affidavit sworn by the 3rd plaintiff on 28. 10. 2024. They contend that mere occupation which is illegal cannot be a ground to claim substantial loss, and that it is not enough for the applicants to aver that they will suffer irreparable harm. It is further argued that the applicants have not offered any security.
3. The 2nd plaintiff has also opposed the application vide her Replying Affidavit dated 28. 10. 2024. She avers that the applicants have not demonstrated any substantial loss that they stand to suffer if the application is not allowed, adding that the suit is one of the oldest in this station.
4. I have considered the rival arguments relating to the question of STAY OF THE JUDGMENT. Matters relating to stay of execution are governed under the provisions of Order 42, Rule 6 of the Civil Procedure Rules. But again, the relief of stay is discretionary and the discretion must be exercised judiciously and upon defined principles of law; not capriciously or whimsically, See Loice Khachendi Onyango v Alex Inyangu & Another [2017] eKLR.
5. I have also taken into account that land is an emotive issue, hence it is only fair and just that the applicants be given an opportunity to ventilate their grievances in a higher court. Further, a notice of appeal has duly been lodged. Weighing the interests of the protagonists, and considering that the matter has been in court for many years (since 1990), the court hereby grants a stay of execution of the judgment dated 3. 10. 2024 for a period of 90 days from the date of delivery of this ruling. The applicants shall pay costs of the application to the plaintiffs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF NOVEMBER 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Matwere for 1st, 3rd, 4th, 5th PlaintiffsJane Okoth for 2nd PlaintiffOyugi for 2nd & 9th Defendants/ApplicantsCourt Assistant: Vena