https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5215

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC APPEAL NO. E005 OF 2026** **MUCEE M’MIORO........................................ APPLICANT/APPELLANT** **=VERSUS=** **GRACE KANGARIA MAKEMBO..................................... RESPONDENT** **RULING** 1. Falling for determination is the **Notice of Motion Application dated** **8th April 2026**, filed by the Applicant herein, **Mucee M’Mioro** seeking specifically for an order of ***stay of execution of the trial court’s orders and decree issued on 1st April 2026 pending the hearing of the appeal.*** 2. The application was brought under ***Article 50(1) of the Constitution, 2010, Order 42 rule 6, Order 51 Rule 1 of the civil procedure rules as well as section 3A of the Civil Procedure Act*** whilst premised on the grounds outlined and the strict averments deponed by the applicant in his two affidavits dated ***8th April 2026 and 3rd June 2026 respectively.*** 3. Upon service, the respondent filed a ***replying affidavit deponed on 21st April 2026,*** fiercely opposing the motion. Parties were then directed to ventilate the application by way of written submissions which I have had sight of and considered 4. For the applicant, their counsel on record, filed a set of arguments dated ***3rd June 2026*** and his case was that, he filed an appeal against the ***ruling and decree of Hon. David Muchangi Ireri, Principal Magistrate delivered on 19th March 2026 at Marimanti Magistrate court, in MCCCMISC NO. E002 of 2024.*** 5. Through that ruling, he was ordered to transfer a parcel of land to the respondent, land which he has been living on, together with his family and forefathers. 6. The decision was made based on a ***miscellaneous application no. E002/2024*** purporting to adopt a land dispute tribunal decision cancelling a joint title contrary to **Section 80(1) of the Land Registration Act** 7. The applicant contends that his appeal ***raises serious triable issues with high chances of success as the orders issued by the trial magistrate are unlawful and erroneous.*** The applicant further adds that the respondent has moved with haste and he is apprehensive that unless the court intervenes and grants an order of stay of execution, ***he will be evicted from the suit land, and his appeal rendered nugatory.*** The applicant submits, he will lose the suit parcel and suffer irreparable loss that cannot be adequately compensated by way of damages if the stay is not issued. 8. In closing, he urged the court to allow his application and expressed ***flexibility to any reasonable conditions that the court may impose*** pending the hearing and disposal of the appeal. 9. As observed herein fore, the application was resisted, ***by a replying affidavit of the respondent*** and a comprehensive set of submissions dated the **19th June 2026**, filed by **M/s Murango Mwenda** **& Co Advocates**. 10. The case of the respondent is that, the grounds on which the applicant is seeking the orders of stay are false and are a gross distortion of facts intended to delay justice. 11. The respondent contends that the applicant is guilty of material non-disclosure, particularly on his allegation that his family and his forefathers lived on parcel ***Tharaka/Kamanyaki*** ***“A” /523*** for a long period of time. The respondent added that the applicant recently moved into the suit land after the demise of ***M’Makembo M’Mwabu and the allegations of the prolonged previous occupancy are all false.*** 12. ***In respect to S. Tharaka/Kamanyaki “A” 126***, the respondent contends that this parcel existed during the pendency of the miscellaneous application. The respondent argued that the applicant stole a match against her by causing subdivisions of the original suit land resulting to parcel ***S. Tharaka/Kamanyaki A”/523 and S. Tharaka/Kamanyaki “A”/522*** without any colour of right and with full knowledge that the tribunal had awarded the suit parcel to the deceased. 13. The respondent adds that she instituted the matter through a miscellaneous application since the Land Dispute Tribunal was defunct. Additionally, she argued that the appellant has approached the court with unclean hands, having offended the ***doctrine of lis pendens*** and caused extensive damage to developments sitting on the suit parcel 14. While summing up her arguments, the respondent submitted that the applicant is ***undeserving of the remedy sought because she has already executed the impugned ruling,*** and therefore the order of stay sought has been overtaken by events. 15. Additionally, the respondent contends that the applicant has come to court to defeat the estate's right to enjoy the fruits of the tribunal’s award and will suffer great injustice if his application is allowed. More importantly he submitted that the application as filed is ***frivolous and an abuse of the court process and should therefore be dismissed with costs as the order sought are undeserving*** **ANALYSIS AND DETERMINATION;** 1. **ISSUE FOR DETERMINATION** 2. I have considered the application wholesomely and the arguments canvassed by parties. I have equally referred to the law upon which this motion, sits. 3. The only issue that falls for determination in my view, is whether or not, the ***application meets the criteria for granting an order of stay of execution pending disposal of an appeal by a first appellate court.*** 4. **DETERMINATION AND FINDINGS** 5. To arrive at my findings, I have apprised myself to the principles that guide the jurisdiction of a first appellate court to grant an order of stay of execution as spelt out under **Order 42 rule 6(2)** of the **Civil Procedure Rules** which states that-; ***“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; and*** ***(b) 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.”*** 1. ***On substantial loss***, the appellant contends, he stands to lose the suit parcel, which will result in irreparable loss and damage that cannot be compensated by way of damages. On her part, the respondent pleaded that the applicant has misled the court in stating that his family and forefathers have lived on parcel ***S. Tharaka/Kamanyaki “A” /523*** for a long period of time and instead she pleaded that they had only recently moved into the suit parcel after the death of ***M’Makembo M’Mwabu.*** The respondent’s averments were controverted by the appellant, who insists, they will lose their land, where they have lived for over twenty years. From the foregoing arguments, it is my finding that a probable ***substantial loss has been proved, that justifies grant of the order sought.*** 2. ***On timeous filing of the application,*** the court notes that the impugned ruling was rendered on **19th March 2026.** The present application was brought on ***8th April 2026, a period of 20 days which I find not an inordinate delay.*** 3. ***On security,*** the applicant contends, they are willing to comply with any reasonable conditions that the court may impose, provided that the court considers their destitute condition. I opine that if they want to continue occupying the suit land while they prosecute their appeal, they ought to have presented to court reasonable proposals on what they are offering as securityduring the period of their continued stay on the land which they have not done. 4. As such, and save for the issue of security, I find that the appellant has sufficiently met the requirements of **Order 42 rule 6(2)** of the **Civil Procedure Rules**. 5. However, the respondent has alleged that he has fully executed the ruling of the trial court, and the stay orders sought have been overtaken by events. In the same breadth, the applicant countered the respondent’s averments by contending that the decree was clear that the property was to be registered in the name of ***Grace Kangaria Makembo*** and not ***John Muthee Makembo***, who from the demonstration of ***Annexture GKM-1,*** has already been transferred the suit parcel, thus there was no proper execution. 6. From a critical assessment of the annextures exhibited, and taking to mind the decree issued by the Hon. Magistrate, it is clear, that there has been execution of the orders, regardless of whether they were properly executed or not. 7. The property by all intent and purpose, ***has already exchanged hands, and it will be foolhardy for this court to issue a stay of execution order when in reality, there is nothing to stay.*** 8. Further, it shall be inappropriate, for this court to issue any injunction and/or preservation orders in respect to the use and dealing of the suit parcel because, ***the person who the order will be directed to, is not a party to these proceedings.*** 9. Weighing on the facts and evidence as submitted, vis a vis the applicable law in respect to such applications, I am of the view that the application dated 8th April 2026 is devoid of merit. 10. Thus, I proceed to dismiss the same with the following orders, in tow; 11. ***The appeal be heard on priority basis*** 12. ***Costs of the application to remain in the cause*** 13. It is so ordered. **RULING DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT CHUKA THIS 28TH JULY 2026.** **L.T. LEWA** **JUDGE** **IN THE PRESENCE OF:** **Court Assistant – Mr. Musyimi** **Appellant/Applicant – Mr. Mwenda kathenya** **Respondent – Mr. Murimi**