M’muguongo & another v Mugambi (Civil Application E023 of 2026) [2026] KECA 1091 (KLR) (5 June 2026) (Ruling)

M’muguongo & another v Mugambi (Civil Application E023 of 2026) [2026] KECA 1091 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KECA 1091 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Application E023 of 2026 SG Kairu, GV Odunga & HI Ong'udi, JJA June 5, 2026 Between Ibrahim Mutuma M’muguongo 1st Applicant Stephen Kaaria M’ananua 2nd Applicant and Stephen Marangu Mugambi Respondent (Being an application for stay of execution from the Judgment of the Environment and Land Court of Kenya at Meru (O. Mboya, J.) dated 25th March 2026 in ELC Case No. E080 of 2025) Ruling 1.In their application dated 24th April 2026, the applicants Ibrahim Mutuma M’Muguongo and Stephen Karia M’Ananua seek an order for stay of execution of the judgment and decree delivered on 24th April 2025 in Nkubu MCELC No. E028 of 2023 pending the hearing and determination of their intended appeal from the judgment of the Environment and Land Court (ELC) (Oguttu Mboya, J.) delivered on 25th March 2026 dismissing their first appeal against the judgment of the Magistrate’s Court. 2.In the Judgment delivered on 24th April 2025, the Magistrate’s Court at Nkubu (R. Ongira) allowed the respondent’s claim against the applicants and declared that the 1st applicant holds the property known as Title Number Nkuene/Mitunguu- Kithino/2272 in trust for the respondent; ordered cancellation of the registration of the 2nd applicant as owner and ordered the transfer of the property to the respondent. Dissatisfied with the judgment, the applicants lodged an appeal before the ELC at Meru, which appeal was dismissed in the judgment, the subject of the intended appeal, delivered on 25th March 2026. Hence the present application in which the applicants seek an order of stay of execution of the Judgment of the Magistrate’s court delivered on 24th April 2025. 3.We heard the application on 3rd June 2026. Learned counsel Mr. Kiautha Ariithi appeared for the applicants and relied entirely on the grounds appearing on the face of the application, the supporting affidavit of the 1st applicant and written submissions dated 19th May 2026. Although the law firm of Muchomba Law Advocates was duly served with notice of hearing, there was no appearance for the respondent but filed a replying affidavit in opposition to the application sworn by the respondent on 12th May 2026. 4.We have considered the application, the affidavits and the submissions against the principles applicable in applications of this nature as articulated by the Court in case of Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others [2013] KECA 378 (KLR). As to whether the intended appeal is arguable, learned counsel has urged that the finding by the trial court that was upheld by the ELC that the applicants hold the property in trust for the respondent is faulty; and that there was no evidence to support that finding. Although the respondent in his replying affidavit asserts that the application is an abuse of the process of the court, bearing in mind, as held by the Court in Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Limited & 2 Others [2009] eKLR, that an arguable appeal is not one that necessarily succeeds we are persuaded that the intended appeal is not frivolous. The question whether the learned Judge discharged the duty of a first appellate court and correctly re-appraised the evidence tendered before the trial court in arriving at his decision is in our view arguable. 5.On the nugatory aspect the applicants contend that the cancellation of the title to the property in execution of the decree will effectively render the intended appeal an academic exercise as there is a risk that the property may then be transferred to third parties out of reach of the applicants. Although the respondent has deponed that the decree of the Magistrate’s court has already been acted upon and registered against the title, it is not shown that the property has been transferred. In the circumstances, and given that the object of a stay order is to preserve the subject matter in dispute, the order we make is to allow the applicants’ application to the extent that the respondent is hereby restrained from transferring the property known as Title Number Nkuene/Mitunguu-Kithino/2272 in execution of the judgment of the Magistrate’s court, pending the hearing and determination of the appeal. The costs of the application shall abide the outcome of the appeal. Orders accordingly. DATED AND DELIVERED AT MERU THIS 5TH DAY OF JUNE 2026.S. GATEMBU KAIRU, FCIArb, CArb.……………………………JUDGE OF APPEALG. V. ODUNGA……………………………JUDGE OF APPEALG. ONG’UDI……………………………JUDGE OF APPEALI certify that this is a true copy of the original.signedDEPUTY REGISTRAR