https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4436

Mukono & 3 others (Suing as the Board of Trustees of Christian Worship International Ministries (CWIM)) v Board of Trustees of Christian Foundation Fellowship Kiamutugu & 2 others (Land Case Appeal E040 of 2025) [2026] KEELC 4436 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELC 4436 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Land Case Appeal E040 of 2025 SM Kibunja, J July 15, 2026 Between Simon Kamau Mukono 1st Appellant Duncan Muchira Kamaru 2nd Appellant Asnath Kuthii Magu 3rd Appellant Edwin Gichobi Githanji 4th Appellant Suing as the Board of Trustees of Christian Worship International Ministries (CWIM) and Board of Trustees of Christian Foundation Fellowship Kiamutugu 1st Respondent Reverend Paul Chomba Muchira 2nd Respondent County Government Of Kirinyaga 3rd Respondent Ruling 1.The appellants filed the notice of motion dated 21st August 2025, that is brought pursuant to the provisions of Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules and Sections 1A, 1B, and 3A of the Civil Procedure Act, seeking principally for an order of stay of execution of the judgment delivered on 8th August 2025, and dated 14th August 2025 in Gichugu PM's ELC Case No. 45 of 2023, pending the hearing and determination of the appeal. They also pray for the costs of the application.The application is founded on the eight (8) grounds appearing on its face and is supported by the affidavit of Simon Kamau Mukono, 1st appellant, sworn on 21st August 2025. 2.It is the appellants’ case that by its judgment delivered on 8th August 2025, the trial court declared inter alia that Plot No. 46B Kiamutugu belongs to Christian Foundation Fellowship (CFF); ordered the applicants' eviction from the plot within six months; declared the transfer of Land Parcel Baragwe/Thumaita/3304 from Christian Foundation Fellowship to Christian Worship International Ministry (CWIM) illegal, null and void; directed that the land be registered in the name of Christian Foundation Fellowship through its trustee, Reverend Paul Chomba Muchira; ordered the cancellation of entries Nos. 4 to 7 in the register relating to Baragwe/Guama/2899, and awarded costs to the plaintiffs in the counterclaim. 3.The appellants were dissatisfied with the judgment in its entirety, and have lodged the appeal challenging the decision. They deposed inter alia that unless execution is stayed, the respondents are likely to proceed with the eviction orders and the consequential cancellation of the existing land registrations before the appeal is heard and determined.The applicants further depose that they have been in occupation of Plot No. 46B Kiamutugu since the year 2014 and have undertaken developments thereon. They also contend that Christian Worship International Ministry is the registered proprietor of Land Parcels Baragwe/Guama/2899 and Baragwe/Thumaita/3304, whose titles are now at risk of cancellation pursuant to the impugned judgment.According to the applicants, execution of the decree would fundamentally alter the subject matter of the appeal and render the appeal nugatory should it ultimately succeed, and the Court should preserve the prevailing position pending the determination of the appeal. 4.The application is opposed by the 1st & 2nd Respondents through the replying affidavit of Rev. Paul Chomba Muchira, 2nd respondent, sworn on 19th September 2025, in which he deposed inter alia that the appellants were the plaintiffs in Gichugu PM's ELC Case No. 45 of 2023, wherein judgment was entered in favour of the respondents.They state that although counsel for the appellants was present during the delivery of the judgment, no application for stay of execution was made. Consequently, upon the extraction of the decree, they immediately initiated the process of its implementation and paid the requisite fees for registration of the decree on 21st August 2025. They contend that by the time interim orders of stay were served upon their advocates on 25th August 2025, execution had already been set in motion and, insofar as the orders touching on the land register were concerned, the application had been overtaken by events. 5.The respondents further disputed the appellants' claim to Plot No. 46B Kiamutugu, and maintained that the plot has at all material times remained registered in the name of Christian Foundation Fellowship, having been transferred to it in 2004 by Kiura Kinyua, and has never been registered in the name of Christian Worship International Ministry. They aver that ownership of the plot had previously been the subject of a dispute-resolution meeting held on 17th February 2023, which was resolved in favour of Christian Foundation Fellowship.They further point out that during the pendency of the suit before the subordinate court, the parties recorded a consent maintaining the status quo over the suit property, a circumstance they contend demonstrates that the appellants themselves appreciated that the respondents had an identifiable interest in the property. 6.It is also the respondents' case that the appellants have failed to satisfy the threshold for the grant of stay order. They contend that the applicants have neither demonstrated the substantial loss they stand to suffer nor offered security for the due performance of the decree.While acknowledging that the appellants have occupied the suit property since 2014, the respondents maintain that such occupation has never been lawful and cannot of itself, justify the grant of stay order. They further depose that the structures erected on Plot No. 46B belong to Christian Foundation Fellowship and that there is no intention to demolish them.According to the respondents, the application merely seeks to delay their enjoyment of the fruits of a lawful judgment and ought to be dismissed with costs. 7.The learned counsel for the appellants filed their written submissions dated 16th February 2026, in which they identified two issues for determination, being whether they have satisfied the conditions for the grant of stay pending appeal, and who should bear the costs of the application.Counsel submitted that the application falls to be determined under Order 42 Rule 6(2) of the Civil Procedure Rules, which requires an applicant to demonstrate that substantial loss may result unless a stay is granted, that the application has been filed without unreasonable delay, and that security for the due performance of the decree has been furnished. 8.Reliance was placed on decision in the case of Eunice Omondi versus Claris Awuor Atito [2023] KEHC 3955 (KLR), where the Court reiterated those requirements. On substantial loss, counsel argued that the appellants have occupied Plot No. 46B Kiamutugu since 2014 and have undertaken developments thereon, all of which stand to be affected if the decree is executed before the appeal is heard.Counsel further submitted that the decree also directs cancellation of the registrations relating to Land Parcels Baragwe/Guama/2899 and Baragwe/Thumaita/3304, thereby exposing the appellants to the risk of losing their registered interests before the appellate court has had an opportunity to determine the legality of the impugned judgment.Counsel also relied on the case of Kenya Shell Limited versus Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR) and submitted that unless execution is stayed, the appeal would be rendered nugatory.It was further submitted that the application was filed barely two weeks after delivery of the judgment and therefore without unreasonable delay. Counsel accordingly urged the Court to allow the application with costs. 9.The learned counsel for the respondents filed submissions dated 9th October 2025, urging the Court to dismiss the application.Counsel submitted inter alia that although the applicable principles are well settled under Order 42 Rule 6 of the Civil Procedure Rules, the appellants have failed to satisfy the most fundamental requirement of demonstrating substantial loss.It was argued that the appellants merely asserted that they would suffer loss through eviction and possible demolition of structures without demonstrating the nature and extent of such loss or placing before the Court any evidence showing that the loss would be substantial. Counsel maintained that an order of stay should not issue on the basis of bare assertions, particularly where the respondents have been declared by the trial court to be the lawful proprietors of the suit properties. 10.Counsel further submitted that granting the orders sought would unjustifiably deny the successful litigants the fruits of their judgment while perpetuating the appellants' occupation of property found not to belong to them. It was therefore urged that the appellants have failed to satisfy the conditions for the grant of a stay pending appeal and that the application should be dismissed with costs. 11.The issues arising in the application for determination by the court are as follows:a.Whether the appellants have satisfied the conditions for the grant of an order of stay of execution pending appeal.b.Who pays the costs? 12.I have carefully considered the grounds on the application, affidavit evidence by the parties, the rival submissions by counsel, superior court decisions cited and come to the following conclusions:a.The jurisdiction of this Court to grant a stay of execution pending appeal is donated by Order 42 Rule 6(2) of the Civil Procedure Rules. The Rule provides that no order of stay shall issue unless the Court is satisfied that substantial loss may result to the applicant unless the order is made; that the application has been brought without unreasonable delay, and that such security as the Court may order for the due performance of the decree has been given. The burden lies upon an applicant to satisfy each of those conditions before the Court can exercise its discretion in his favour.In the case of Eunice Omondi versus Claris Awuor Atito [2023] KEHC 3955 (KLR), the Court restated those three requirements, while in the case of Kenya Shell Limited versus Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR), the Court of Appeal observed that substantial loss is the cornerstone upon which an application for stay of execution rests.b.On the requirement relating to delay, the court has noted that the judgment sought to be appealed against was delivered on 8th August 2025, while the present application was lodged on 21st August 2025, which was approximately two weeks later. The respondents did not seriously contest the timeliness of the application. In the circumstances, I am satisfied that the application was presented expeditiously and without unreasonable delay.c.The more contentious question is whether the appellants have demonstrated that they stand to suffer substantial loss if execution is allowed to proceed while the appeal is pending. The appellants contend that they have been in occupation of Plot No. 46B Kiamutugu since 2014, and have undertaken developments thereon.They further state that Christian Worship International Ministry is the registered proprietor of the Land Parcels Baragwe/Guama/2899 and Baragwe/Thumaita/3304, and that the decree directs the cancellation of those registrations. Their apprehension is that implementing the decree before the appeal is heard will not only result in their eviction from the suit premises, but also alter the existing entries in the land register, thereby fundamentally changing the subject matter of the appeal.d.The respondents, on the other hand, contend that the appellants have merely made general allegations of loss without demonstrating how such loss would amount to substantial loss. They further argue that the structures standing on Plot No. 46B belong to Christian Foundation Fellowship and that there is no intention to demolish them. According to the respondents, the appellants are merely seeking to delay their enjoyment of a lawful judgment.e.It is important to appreciate the nature of the decree sought to be stayed. This is not an ordinary money decree where the principal concern would be whether the decretal sum would be recoverable if the appeal ultimately succeeds. The decree under challenge inter alia declares ownership of Plot No. 46B Kiamutugu; directs the eviction of the appellants therefrom; orders rectification of the land register by canceling the registration of Christian Worship International Ministry as proprietor of Baragwe/Thumaita/3304; and further directs the cancellation of entries in the register relating to Baragwe/Guama/2899. In essence, the decree affects both the parties' possession of the suit property and their registered proprietary interests.f.The purpose of an order for stay pending appeal is not to determine whether the appeal will ultimately succeed. That is the province of the appellate court. Rather, it is to preserve, where the circumstances of the case so demand, the subject matter of the appeal so that the appellate process is not rendered illusory by execution undertaken before the appeal is heard. The Court must therefore consider whether execution would so alter the existing state of affairs as to make it difficult to give effect to the appellate court's decision should the appeal ultimately succeed.g.In the present case, execution of the decree would result in the appellants being removed from possession of Plot No. 46B Kiamutugu pursuant to the eviction orders issued by the trial court. Whether their occupation is ultimately lawful is a matter reserved for determination in the appeal. Nevertheless, it is not disputed that they have remained in occupation of the property for a considerable period. If execution proceeds before the appeal is heard, possession of the property will change hands. Although such possession may, in theory, be restored if the appeal succeeds, the Court cannot ignore the practical reality that restoration of parties to their previous positions following execution of eviction orders is seldom a straightforward exercise. The change in possession would inevitably alter the factual substratum upon which the appeal is founded.h.The same applies to the orders directing rectification of the land register. While the respondents contend that the appellants' registrations can always be restored if the appeal succeeds, the Court cannot accept that as a sufficient answer to the present application. Cancellation of entries in the register and restoration of proprietorship are not merely procedural steps; they affect registered proprietary interests. If those orders are implemented before the appeal is determined, the legal status of the suit properties will be altered. Although such alterations may ultimately be reversible, the Court is satisfied that execution would substantially change the subject matter of the appeal before the appellate court has had the opportunity to pronounce itself on the correctness or otherwise of the impugned judgment.i.The respondents further contended that the application had been overtaken by events because they had already commenced execution by paying the requisite registration fees for the decree on 21st August 2025. I am unable to agree with that contention. The material placed before the Court consists of a receipt evidencing payment of registration fees. There is, however, no evidence that the Land Registrar had, by the time this application came before the Court, effected the cancellations directed in the decree or completed the process of rectifying the register. More importantly, upon presentation of the application, this Court directed that there be a temporary stay of execution of the judgment pending the hearing and determination of the application or until further orders of the Court. In the absence of evidence demonstrating that execution had already been completed before the interim orders took effect, I am not persuaded that the application was overtaken by events.j.Taking the foregoing matters into account, I am satisfied that the appellants have demonstrated that the execution of the decree before the appeal is heard would fundamentally alter both the legal and factual status of the suit properties and thereby expose them to substantial loss within the meaning of Order 42 Rule 6(2) of the Civil Procedure Rules.k.The final consideration relates to security for the due performance of the decree. It is true that the appellants did not expressly propose any form of security. However, the wording of Order 42 Rule 6(2)(b) contemplates such security as the Court may order. The obligation to furnish security therefore remains, but the nature and extent of such security fall within the discretion of the Court.Considering that the decree appealed against principally concerns declaratory, eviction, and rectification orders, with costs being its only monetary component, I am of the view that the ends of justice will be sufficiently served by requiring the appellants to furnish reasonable security, to be determined by the court, as a condition for the grant of stay.l.Having found that the application was filed without delay, that the appellants have demonstrated substantial loss, and that appropriate security can be imposed, I am satisfied that this is a proper case for the exercise of the Court's discretion in favour of the appellants.While the respondents are undoubtedly entitled to enjoy the fruits of their judgment, that right must, in the circumstances of this case, be balanced against the equally important need to preserve the subject matter of the appeal so that the appellate process remains effective and meaningful. I am persuaded that preserving the prevailing state of affairs pending the determination of the appeal best serves the interests of justice.m.Under Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the events unless where for good cause the court orders differently. In this matter, I am of the considered view that justice will be served better by an order that costs abide the outcome of the appeal. 13.Accordingly, the Notice of Motion dated 21st August 2025 is allowed on the following terms:a.That a conditional stay of execution of the judgment delivered on 8th August 2025, and dated 14th August 2025, in Gichugu PM's ELC Case No. 45 of 2023, pending the hearing and determination of the appeal, is granted.b.The stay granted in (a) above is conditional upon the appellcants depositing Kshs.200,000/= [two hundred thousand] in an interest earning bank account in the joint names of parties’ counsel or in Court as security for the due performance of the decree within the next thirty (30) days from the date of this ruling.c.In default of compliance with Order (b) above, the stay order granted herein shall automatically lapse without the necessity of any further order of the Court.d.Costs of the application shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 15TH DAY OF JULY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Appellants – Mr. Wachira for MakworoRespondents – M/s Wambui for Wanjiru Waweru for 1st and 2nd RespondentsKinyua/Charles - Court AssistantS. M. KIBUNJAELC JUDGE