https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3206

M’Muruithania & 3 others v Murithi & 7 others (Environment and Land Appeal E034 of 2026) [2026] KEELC 3206 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3206 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E034 of 2026 JO Mboya, J May 25, 2026 Between Jane Rinya M’Muruithania 1st Appellant Rosa Gacheri Karani 2nd Appellant Brenda Kajuju Mbaabu 3rd Appellant Wilfred Mwirigi Mutwiri 4th Appellant and Susan Kathambi Murithi 1st Respondent Tisilla Karambu Gichohi 2nd Respondent Sammy Mwirigi 3rd Respondent Gatwiri Nancy Mwirigi 4th Respondent Faith Kagwiria 5th Respondent Phillis Karoki 6th Respondent Lydia Kendi 7th Respondent Land Registrar – Meru 8th Respondent Ruling 1.Before me is the Notice of Motion Application dated the 09.04.2026; brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 42 Rule 6 of the Civil Procedure Rules, 2010; and the Inherent jurisdiction of the court; and wherein the Applicants have sought the following reliefs:i.That this Application be certified urgent and be heard ex-parte in the first instance.ii.That the Honourable Court be pleased to stay the order of temporary injunction granted on 17th March, 2026 in Meru CMELC No. E164 of 2025 involving the parties herein pending the hearing and determination of this application inter-parties.iii.That the honorable court be pleased to stay the order for temporary injunction granted on 17th March, 2026 in Meru ELC No. E164 of 2025 involving the parties herein and determination of the appeal herein.iv.That the honorable court be pleased to grant any other order in the interests of justice. 2.The subject application is premised on various grounds which have been enumerated in the body of the application. The grounds are: The respondents herein filed/commenced civil proceedings vide Meru CMELC No. E164 of 2025; the respondents also filed an application for orders of temporary injunction and inhibition; the Chief Magistrate entertained the application for temporary injunction; the application was allowed; the Chief Magistrate thereafter proceeded to and issued/granted an order of inter alia temporary injunction to restrain the applicants from entering upon and or otherwise dealing with the suit properties. 3.Additionally, it has been contended that the suit properties arose from the subdivision of LR No. Kibirichia/Ntumburi/406 [herein after referred to as the original parcel of land]; the original parcel of land belonged to and was registered in the name of Justus Murithi Mwithimbu [deceased]; the deceased subdivided the original parcel of land during his lifetime; the deceased thereafter transferred and caused the suit properties to be registered in the names of the applicants. 4.Furthermore, it has been contended that upon the transfer and registration of the suit properties in the names of the applicants, the applicants took possession and have been in occupation thereof. Nevertheless, it has been posited that despite the fact that the applicants are the registered owners of the suit properties, the lower court has since issued an order of temporary injunction and thus the applicants have effectively been evicted from the suit properties, albeit at an interlocutory stage. 5.Moreover, the applicants have posited that the respondents herein are in occupation of separate and distinct portions of what was previously the original parcel of land and the orders of the court, other than dispossessing the applicants, have also granted to the respondents unlimited control over portions of land belonging to the applicants. 6.The subject application is supported by two [2] affidavits, namely; the supporting affidavit sworn by Rosa Gacheri Karani on the 09.04.2026 and the supplementary affidavit sworn by the same deponent on the 09.05.2026. The averments at the foot of the twin affidavits reiterate the grounds which have been highlighted in the preceding paragraphs. 7.The respondents have opposed the subject application. The respondents have filed a replying affidavit sworn on the 27.04.2026. The respondents have raised/highlighted various issues. The issues include: The original parcel of land belonged to and was registered in the name of Justus Murithi Mwithimbu – deceased; the deceased was the father of the respondents and the 2nd applicant herein; the respondents had sued the deceased vide Meru CMCELC No. E153 of 2021; the suit was in respect of customary trust; the suit was heard and dismissed; the respondents thereafter filed an appeal vide Meru ELC Appeal No. E082 of 2022; the appeal was heard and determined; the Judgment vide the appeal was rendered on the 08.05.2024; the appeal directed the deceased to subdivide the original parcel of land in accordance with the mutation form which had been signed by the deceased; the original parcel of land was subdivided in contravention of the judgment vide the appeal; and the certificate[s] of title issued to the applicants were procured/obtained fraudulently and unprocedurally. 8.The respondents have further posited thus: The respondents have been inoccupation of the portions comprising of the suit properties; the respondents have made substantial developments on the suit properties; the applicants herein have since threatened to enter upon and demolish the developments by the respondents; the threats by the applicants precipitated the filing of the suit in the lower court and the application for temporary injunction; the application for temporary injunction was lawfully granted; and that the applicants have neither established nor demonstrated a lawful basis to warrant the orders sought. 9.Additionally, the respondents have contended that: The applicants herein do not have lawful title[s] to the suit properties; the transfer in favour of the applicants were obtained by fraud; the applicants will not suffer substantial loss; and the orders of stay of execution pending appeal are not merited. 10.The subject application came up for hearing on the 21.05.2026; whereupon the advocates for the parties confirmed their readiness to proceed with the hearing. Thereafter, the court issued directions pertaining to the hearing and disposal of the application. Suffice it to state that the court directed that the application be canvassed vide oral submissions. 11.Learned counsel for the applicants adopted the grounds at the foot of the application; the contents of the supporting affidavit; the contents of the supplementary affidavit; and thereafter highlighted three [3] key issues. The issues are: The applicants are the registered owners of the suit properties; the orders of temporary injunction issued by the Chief Magistrate’s Court have effectively evicted the applicants from the suit properties; and the applicants shall be disposed to suffer substantial loss not capable of being compensated in monetary terms. 12.It was the further submissions by learned counsel for the applicants that the orders of the court have technically evicted the applicants from the suit properties. In particular, it was contended that the orders in question have barred the 1st and 2nd applicants from the properties, which the named applicants have resided upon and known as their home over the years. 13.To this end, the court was implored to grant the orders of stay pending the hearing and determination of the subject appeal; and thus to avert the imminent eviction. 14.Learned counsel for the respondents adopted and relied upon the contents of the replying affidavit sworn on the 27.04.2026; and the annextures thereto. Thereafter learned counsel sought to highlight and indeed highlighted two [2] key issues. The issues are: The transfer and registration of the suit properties in the names of the applicants were procured/obtained by fraud; and the applicants shall not be disposed to suffer substantial loss or at all. 15.Moreover, learned counsel for the respondents have submitted that the applicants herein have not been in occupation of the portions comprising of the suit properties; and the averments by/on behalf of the applicants is misleading. Further, and in addition, it has been contended that the respondents are the ones who have been in occupation and have substantially developed the suit properties, which are stated to be resultants subdivisions of LR No. Kibirichia/Ntumburi/406 [original parcel of land]. 16.Flowing from the foregoing, learned counsel for the respondents have submitted that the applicants herein are not entitled to the orders sought. In particular, it was contended that the grant of such orders would be tantamount to sanctioning the illegal certificates of title in the names of the applicants. 17.Having reviewed the Notice of Motion Application; the supporting affidavit sworn on the 09.04.2026; the supplementary affidavit sworn on the 09.05.2026; the replying affidavit sworn on 27.04.2026 and the annextures thereto; and upon consideration of the oral submissions made by/ on behalf of the respective parties; and bearing in mind the applicable law governing the grant of Stay of Execution; three [3] key issues crystalize for consideration and determination. 18.The issues are: Whether the applicants have established sufficient cause or basis; Whether the applicants shall be disposed to suffer substantial loss; and Whether the court ought to decree provision of security in the circumstances of the case or otherwise. 19.Regarding the first issue, it is common ground that no appeal or second appeal shall operate as an order of stay of execution pending the hearing and determination of the appeal. Nevertheless, it is important to underscore that both the court of first instance [that is, the Court appealed from] or the court to which the appeal has been preferred, namely; the Appellate Court, are seized of the requisite jurisdiction to grant an order of stay of execution pending appeal provided certain conditions/ingredients are established. 20.Notably, the ingredients to be established include; proof of sufficient cause. 21.What amounts to sufficient cause is incapable of being exhaustively defined. However, there is no gainsaying that a claimant can very well demonstrate and prove sufficient cause by taking bona fide and diligent steps towards filing the appeal within the stipulated/prescribed timelines. In this case, it is apparent that the appellants have since filed/lodged the memorandum of appeal against the impugned ruling. In addition, it is evident that the memorandum of appeal was filed in accordance with the provisions of Sections 79G of the Civil Procedure Act, Chapter 21 Laws of Kenya. 22.Furthermore, the memorandum of appeal raises various pertinent grounds. To my mind, the grounds that have been highlighted in the body of the memorandum of appeal are ex facie arguable. 23.Suffice it to state that the court will be called upon to interrogate inter alia; Whether an order of temporary injunction can issue and be granted against the registered owner of the suit property; Whether an order of temporary injunction can issue against a person who is said to be in occupation of the said property; Whether the Respondents herein clearly established a prima facie case; and Whether the respondents truly established a likelihood of irreparable loss or otherwise. 24.The determination of the foregoing issues will have to await the plenary hearing of the appeal. Nevertheless, I hold the opinion that the appeal which has been filed by/on behalf of the applicants meets the threshold of what constitutes sufficient cause. Notably, the provisions of Order 42 Rule 6 [1] of the Civil Procedure Rules underscore the importance of sufficient cause in matters pertaining to stay of execution pending appeal. 25.Next is the issue of whether substantial loss will accrue or arise, unless the orders sought are granted. It is imperative to highlight that substantial loss, in its various forms and perspectives, is what ought to be averted by order of stay 26.It is such loss that cannot readily be compensated in monetary terms. It is a loss that may very well destroy or negates the substratum of the appeal; and thus render the appellate proceedings academic. 27.Put differently, substantial loss is the cornerstone or the key pillar, upon which an order of stay of execution shall issue. To this end, it is ordinarily incumbent upon any applicant seeking an order of stay of execution, to demonstrate and establish substantial loss. Further, and in addition, proof of substantial loss must be demonstrated and substantiated in the grounds underpinning the application and the supporting affidavit. 28.The importance of substantial loss in an application for stay of execution pending an appeal was alluded to by the Court of Appeal in the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR. The court [per Platt – J A] stated thusIt is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money. 29.Moreover, the question of substantial loss was also adverted to in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR). The court highlighted the principles in the following manner:The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 30.Have the applicants demonstrated substantial loss? Firstly, it is important to point out that the applicants herein are admittedly, the registered owners of the suit properties. The respondents have duly confirmed that same visited the land registry and ascertained that the titles of the suit properties were indeed registered in the names of the applicants. 31.Be that as it may, the respondents have posited that the transfer and registration of the suit properties in the names of the applicants were procured and obtained fraudulently and unprocedurally. Nevertheless, there is no gainsaying that the question as to whether or not the certificate of titles in the names of applicants was procured fraudulently or otherwise, must await the hearing and determination of the suit filed by the respondents. For good measure, the said suit is pending hearing and determination before the lower court. 32.Notwithstanding the foregoing, what is common ground is that the applicants are currently the registered owners of the suit properties. By virtue of such registration, the applicants are entitled to certain statutory rights and privileges. [ See Section 24 and 25 of the Land Registration Act 2012]. 33.The lower court has since issued and injunction. The question that does arise is whether the issuance of such an injunction has effectively nullified or negated the substratum of the certificate of title, or otherwise. I am afraid that an order of temporary injunction ought not to issue or be issued against the registered owner of the property, unless there exist[s] peculiar or exceptional circumstances. For the avoidance of doubt, no such circumstance[s] were obtaining in respect of the instant mattere. 34.In the case of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), the Court of Appeal highlighted the position thus:52.It must also be remembered that it is a serious thing to restrain a registered proprietor of a property over what is undeniably his unless there are justifiable grounds to do so. 35.In my humble view, the issuance of the order of temporary injunction against the bearers of the certificates of title, is bound to subject the said title holders to substantial prejudice; hardship and loss. Pertinently, the titles of the applicants herein appear [I repeat, appear] to have been nullified on the basis of the interlocutory injunction which have restrained same from partaking of or benefiting from the suit properties, which are currently registered in their name[s]. 36.Simply put, I discern apparent substantial loss. 37.Furthermore, it is also important to point out that the applicants posited that the 1st and 2nd applicants have been resident on and residing upon the suit properties. For good measure, it was conceded that the second applicant herein is a sister of the 1st to the 7th respondents. In addition, there is no gainsaying that the named applicant was borne on what now comprises of the suit property. 38.Notwithstanding the foregoing, an order of temporary injunction has since been issued to bar inter alia the 1st and 2nd applicants from entering upon, cultivating or in any way dealing with the named properties. To my mind, the import and tenor of the orders of temporary injunction it to [sic] evict and remove the named applicants from the suit properties. 39.I am alive to the fact that there are certain orders of temporary injunction which are disguised; and though worded as [sic] temporary injunction, the real import is actually to achieve eviction. 40.Sadly, that is my understanding of the orders of temporary injunction that were issued herein. To this end, and given the legal implications of the impugned orders, there is no doubt that substantial loss shall arise. [See the Headmaster Kiembeni Baptist Primary School & another v Pastor of Kiembeni Baptist Church [2005] eKLR]. 41.Turning to the third issue, namely; whether an order for provision of security ought to issue. I wish to point out that the directions as pertains to security is at the discretion of the court. The discretion must nevertheless, be exercised reasonably, judiciously, and objectively. Further, and in addition, the court is enjoined to take into account the obtaining circumstances. [See Order 42 Rule 6[2] [b] of the Civil Procedure Rules]. 42.The applicants herein are before this court on appeal on the basis of the injunctory orders, which have been issued to bar/prohibit same from inter alia using the properties registered in their names. The nature of the appeal, in my humble view, does not warrant an order for provision of security. Moreover, I hold the view that the issuance for an order for provision of security, in the circumstances, would be antithetical to the interest of justice and equity. Conclusion 43.Flowing from the analysis contained in the body of the ruling, I come to the conclusion that the applicants herein have indeed established and demonstrated the existence of sufficient cause. The cause has been shown vide the appeal, which was timeously filed. Furthermore, the grounds at the foot of the memorandum of appeal are ex facie arguable. 44.Additionally, I have also come to the conclusion that the import and tenor of the orders of temporary injunction, which were issued by the lower court, are bound to occasion substantial loss. Suffice it to underscore, that the applicants appear to have been evicted vide the orders of temporary injunction, which underpin the subject appeal. Final orders: 45.Consequently, and in the premises, the final order that commend themselves to me are:i.The Application dated 09.04.2026 be and is hereby allowed.ii.There be and is hereby issued an order of stay of execution; enforcement; and implementation of the temporary injunction issued on the 17.03.2026 vide Meru CMELC No. E164 of 2025 pending the hearing and determination on the appeal.iii.Costs of the Application be and are hereby awarded to the applicants.iv.The costs in terms of clause [iii] shall be agreed upon and in default taxed in the conventional manner.v.Nevertheless, the order of inhibition which was issued by the lower court shall however remain in place to protect; preserve; and conserve the suit properties; and to avert any alienation/charge/disposal during the pendency of the appeal and the suit in the lower court. 46.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 25TH DAY OF MAY, 2026OGUTTU MBOYA, FCIArb;CPM [MTI-EA]JUDGEIn the presence of-:C/A ZakayoMr. Kimathi for the Appellants/ApplicantsMs. Mugo for the 1st to 7th RespondentsMs. Miranda Senior Litigation Counsel for the 8th Respondent.