Muna & 5 others v Boscardin & 3 others (Environment and Land Case 27 of 2020) [2026] KEELC 3522 (KLR) (10 June 2026) (Ruling)

Muna & 5 others v Boscardin & 3 others (Environment and Land Case 27 of 2020) [2026] KEELC 3522 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3522 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case 27 of 2020 CK Nzili, J June 10, 2026 Between Anne Wambui Muna 1st Plaintiff Allan Munga Muna 2nd Plaintiff Sarah Mwihaki Muna 3rd Plaintiff Luisa Nyakibishoi Muna 4th Plaintiff Reuben Ng'ang'a Muna 5th Plaintiff Kitamu Fam Limited 6th Plaintiff and Anne Njoki Munga Boscardin 1st Defendant Elizabeth Wacheke Waruru, Jane Wangeci (Being the administrators of the Estate of the Late Elizabeth Waceke) 2nd Defendant Bernard Muiruri Kamau (Being administrator of the Estate of the Late Priscilla wangeci Muiruri) 3rd Defendant Mukami Gathu 4th Defendant Ruling 1.By an application dated 7/3/2026, the court is asked to:(1)…spent(2)Pending the hearing and determination of this application interpartes, this honourable court do hereby issue an order of stay of execution of its judgment dated and delivered on 21/1/2026.(3)Pending hearing and determination of this application interpartes, this honourable court be hereby pleased to issue an order restraining the defendants/respondents from cultivating, planting, or continuing to cultivate or plant any fresh crops, from causing damage to any structures or assets developed therein; and from cutting or felling any further trees on the suit properties known as Waitaluk/Kapkoi Block 11/Gutongorio “B”/58, and Waitaluk/Kapkoi Block 11/Gutongorio/54.(4)Pending the hearing and determination of the intended appeal, the honourable court to issue an order of stay of execution of its judgment dated and delivered on 21/12/2026.(5)Pending hearing and determination of the intended appeal, this honourable court be hereby pleased to issue an order restraining the defendants/respondents from cultivating, planting, or continuing to cultivate or plant any fresh crops, from causing damage to any structures or assets developed therein; and from cutting or felling any further trees on the suit properties known as Waitaluk/Kapkoi Block 11/Gutongorio “B”/58, and Waitaluk/Kapkoi Block 11/Gutongorio/54. 2.The grounds are set out on the face of the application and in a supporting affidavit of Reuben Nganga Muna, who is the 5th plaintiff, sworn on 7/3/2026. The 5th plaintiff deposes that he swears the affidavit on his behalf and that of the rest of the plaintiffs, though he has not attached an authority to do so on their behalf. 3.The 5th plaintiff deposes that following a judgment delivered on 21/1/2026, the plaintiffs have filed a notice of appeal and also requested certified copies of the proceedings as per attached annexes marked RNM-(3) and (4). The 5th plaintiff deposes that the intended appeal is arguable and, unless there is a stay of the judgment partially in favour of the 1st, 3rd, 4th, 5th, and 6th defendants, the plaintiffs stand to suffer substantial loss, and the intended appeal will be rendered nugatory, as per the attached draft memorandum of appeal marked RNM-(5). 4.The 5th plaintiff deposes that the application was filed expeditiously and within the 45 days granted at the delivery of the ruling, hence no unreasonable delay in applying for a stay of execution. 5.The 5th plaintiff deposes that the plaintiffs are ready, willing, and able to abide by any conditions that may be imposed by the court upon allowing the application. 6.The 5th plaintiff deposes that, despite the stay order, the defendants have commenced occupation of the suit properties and have engaged in destructive activities that have resulted in the destruction of more than 300 trees, which they have cut down as per photographs annexed as RNM-(6). 7.The 5th plaintiff deposes that no prejudice will be occasioned to any party if this application is allowed; otherwise, the defendants have already occupied and caused destruction of the suit premises and are likely to proceed with execution of the judgment to the detriment of the plaintiffs. 8.The 5th plaintiff deposes that within the time that may likely take to hear and determine the intended appeal, the intended appeal may be defeated due to no default on the plaintiffs’ part, but to their great detriment. The 5th plaintiff deposes that it is expedient and in the interest of justice that the orders sought are granted to avert the gross miscarriage of justice on the plaintiffs, who have a right to protection of their property and to access to justice under Articles 40 and 48 of the Constitution. 9.The application is opposed by the 1st, 3rd, 4th, 5th, and 6th defendants through grounds of opposition dated 23/3/2026 that:1.The application does not meet the threshold for a grant of stay.2.No offer has been made on condition for the grant of stay.3.It contravenes Sections 1A and 1B of the Civil Procedure Act, Article 159 2(b) of the Constitution, as it does not advance the interests of justice but instead seeks to re-litigate already settled issues.4.It is an abuse of the court process.(5)The respondents will suffer prejudice due to the delay and disruption of the trial process 10.The application is also opposed by the 2nd defendant through a replying affidavit sworn by Jane Wangeci on 31/3/2026 for being misleading, falling short of the threshold of stay, amounting to a miscarriage of justice, a delaying tactic, and out to frustrate the lawful enjoyment of the fruits of the judgment by the respondents. 11.The 2nd defendant deposes that the allegations that the intended appeal will be rendered nugatory are speculative, unsubstantiated, and do not meet the required threshold. The 2nd defendant deposes that, on the contrary, it is the defendants who will continue to suffer prejudice as they have been denied full enjoyment of their lawful rights as declared by the court. 12.The 2nd defendant deposes that the defendants have been in occupation and or beneficial use of the suit premises as recognised by the judgment of the court, and therefore any activities being undertaken on the land are lawful, justified, and consistent with the declared beneficial interests. 13.The 2nd defendant deposes that the purported intended appeal is not arguable as alleged and merely raises issues that were fully canvassed, considered, and determined by the court, which the plaintiffs are improperly trying to relitigate under the guise of an appeal. 14.The 2nd defendant deposes that throughout the proceedings, the plaintiffs have demonstrated a pattern of conduct aimed at frustrating the defendants and denying them their rightful entitlement. 15.The 2nd defendant deposes that the applicants have not offered any security for the due performance of the decree as required in law, which omission is fatal to the application and disentitles them to the discretionary reliefs sought. 16.The 2nd defendant deposes that the balance of convenience tilts in favour of the defendants, who have obtained a lawful judgment entitling them to enjoy its fruits, which, if the application is allowed, will unjustly prejudice them and instead allow the continued obstruction of justice by the applicants, who have not even met the principles of the grant of an injunction. 17.The plaintiffs rely on written submissions dated 19/3/2026. It is submitted that the plaintiffs/applicants have met the threshold for the grant of both stay of execution and entitlement to temporary injunction as provided under Order 42 Rule 6(2) and 40 Rule (1) of the Civil Procedure Rules. 18.On substantial loss, the applicants submit that substantial loss denotes irreparable harm that an applicant would suffer if the judgment is executed before the appeal is heard and determined. The plaintiffs submit that a substantial loss in this case arises since they have been in possession of the suit property that faces an impending act that would destabilise the status quo and threaten to cause damage to developments on the property. Reliance is placed on Nyatera vs Nyakundi [2023] KEHC 3086[KLR] and Murakaru vs Kirera & Others [2025] KEELC 7701 [KLR]. 19.The 5th plaintiff submits that he has demonstrated with compelling evidence that the plaintiffs would suffer loss in the absence of a stay in terms of risk of destruction of developments, ongoing destructive activities, and the continuing irreparable harm. 20.The 5th plaintiff submits that substantial loss would also arise to negate or affect the very essential core of the appeal, by which an order of stay would prevent. Reliance is placed on Saheb & Others vs Mohamed [2025] KEELC 7957 [KLR] and James Wangalwa & Agnes Naliaka Cheseto [2012] KEHC 1094 [KLR]. 21.The 5th plaintiff submits that an arguable appeal, which they have demonstrated is one deserving of judicial consideration and ought to be fully argued before the court, as held in Saheb & Others vs Mohamed (Supra). Therefore, the plaintiffs submit that to avoid the same being rendered nugatory, it is only that the defendants' destructive activities, which would irreversibly alter the character and condition of the suit properties, be stopped, to preserve the subject matter in dispute so that their rights are safeguarded in the event the appeal succeeds. Reliance is placed in Butt vs Rent Restriction Tribunal [1979] KECA 22 [KLR], and Muthigani vs Munene [2025] KECA 1249 [KLR]. 22.On delay, the plaintiffs submit that an order of stay pending filing of a formal application was granted by the court on 21/1/20256, to last for 45 days, and that this application was filed by 7/3/2026. Reliance is placed on Chame vs Adongo & Another: Pioneer General Insurance Ltd & Others (IP) [2024] KEHC 827 [KLR]. 23.The plaintiffs submit that, whereas they are willing to abide by any reasonable conditions that the court may impose upon allowing the application, the need to furnish security for the due performance of the decree or order does not arise in this case because there was no monetary amount awarded in the judgment. reliance is placed on Konchella vs Kendeya & Another [2023] KEELC 33 [KLR]. 24.On injunctive orders, the plaintiffs submit that there is a need to grant such relief. Reliance is placed on Black’s Law Dictionary, 9th Edition, on a prohibitory injunction that may seek to restrain the defendants from cultivating, planting, or causing any damage to any structures or assets developed on the suit premises. Reliance is placed in Mutisya vs Mwanzia [2022] KEELC 3806 [KLR], Giella vs Cassman Brown [1973] EA 358, Nguruman Ltd vs Jan Bonde Nielsen & Others [2014] KECA 606 [KLR], Mrao Ltd vs First American Bank of (K) Ltd & Others [2003] KECA 175 [KLR], Chumo vs Koech & Another [2023] KEELC 21800 [KLR], Hezron Kamau Gichuru vs Kianjoya Enterprises Ltd & Another [2022] KEELC 756 [KLR] and Paul Gitonga Wanjau vs Gathuthi Tea Factory Co. Ltd & Others [2016] KEHC 7263 [KLR]. 25.The 2nd defendant relies on written submissions dated 31/3/2026, isolating two issues for the court’s determination. On stay, the 2nd defendant submits that the applicants have not met the conditions set under Order 42 Rule 6(2) of the Civil Procedure Rules. Reliance is placed on Kenya Shell Ltd vs Benjamin Karuga Kibiru & Another [1986] KLR 410, by demonstrating any substantial loss that they stand to suffer with real, demonstrable, and not speculative evidential backing. 26.The 2nd defendant submits that no security has been offered or proposed, which is a mandatory requirement, making the application fatal as held in Halal & Another Ltd [1990] KLR 365. The 2nd defendant terms the application as a delaying tactic to continue in occupation and control of the suit premises contrary to the judgment and to the detriment of the rights of the defendants who have beneficial interests in the land. 27.The 2nd defendant submits that the court stands guard against litigants who seek to abuse the appellate process as a shield against lawful execution. The 2nd defendant submits that although the arguability of an intended appeal is not a strict requirement under Order 42 of the Civil Procedure Rules, the applicants have failed on this ground, for the issues raised were fully canvassed during the trial and conclusively determined by this court, which they now wish to re-litigate. 28.The 2nd defendant submits that the subject matter is land which is immovable and capable of preservation through remedies, and therefore, there is no possibility of the appeal being rendered nugatory. 29.On injunctive orders, the 2nd defendant submits that the applicants have failed to establish the ingredients set in Giella vs Cassman Brown & Co. Ltd [1973] EA 358 and that, as successful litigants, the defendants, as held in Butt vs Rent Restriction Tribunal [1982] KLR 417, are entitled to the fruits of their judgment and in this case the plaintiffs should not be allowed to freeze the judgment indefinitely and to continue benefiting from the land that they were found not entitled to. 30.The power to grant a stay of execution and an interim order of injunction pending hearing and determination of an intended appeal is discretionary in nature. To be entitled to a grant of stay of execution pending an intended appeal, an applicant must file the application without unreasonable delay, demonstrate that it stands to suffer substantial loss or damage in the absence of a stay, provide security for the due performance of the decree should the appeal not succeed, and lastly, show that it is in the interest of justice for the orders to issue. 31.The law has not defined what the maximum or minimum delay is. It all depends on the circumstances of each case. Delay must be satisfactorily explained. See DPP vs C.B. Okemo & Others SCOK Appl. No. 28 of 2010. 32.In Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] eKLR, the court said that any delay must be satisfactorily explained, even though the law has not set what the minimum and maximum delay is. 33.Substantial loss remains the cornerstone of stay. It has to be substantiated with tangible and cogent evidence. It is not enough to allege that an execution is imminent. 34.Execution per se, as held in Wangalwa vs Cheseto [20123] eKLR, does not amount to substantial loss. It is a lawful process. 35.In Antoine Ndaiye -vs- African Virtual University [2015] eKLR, the court said that a party must show that substantial loss may result, unless the order of stay is made. To grant or refuse a stay order, as held in Butt vs Rent Restriction Tribunal [1982] [KLR] 417, depends on whether there are special circumstances of the case and unique requirements. 36.It is not enough to allege that one is in occupation of the land, or that there will be substantial loss or damage. Empirical and scientific evidence is what an applicant has to possess, demonstrate, and provide before the court. Mere allegations will not suffice. 37.In Samvir Trustees Limited -vs- Guardian Bank Limited [2000] eKLR, the court declined to grant a stay for lack of evidence of such alleged substantial loss. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. 38.The applicants have to bring material evidence of such loss or damage, such that the court can weigh or balance the two rights of the successful litigant against those of the unsuccessful litigant seeking to preserve the subject matter in dispute as he exercises an undoubted right of appeal, so that even successful on appeal, the subject matter does not dissipate. 39.As held in RWW vs EKW [2019] eKLR, the court is required to ensure no party suffers prejudice that cannot be compensated by an award of costs. 40.In Kakuzi PLC vs Makuyu Club, suing through Joel Nyoike & Others SCOK Petition Appl. No. E035 of 2025, the court cited with approval Kenya Hotels Properties Ltd vs Attorney General & Others [2020] KESC 6 [KLR], on an arguable appeal as one with substance or not made of straw or one built not on quicksand but with a strong foundation. On the nugatory aspect, the court cited with approval Haki Na Sheria Initiative vs IG of Police & Others KWHR & Equality Commission (IP) [2021] KESC 22 [KLR], that in the nugatory aspect to be considered is whether what is sought to be stayed if allowed to happen is reversible or if it is not reversible, whether damage will reasonably compensate the party aggrieved. 41.The court said that in considering an application for stay, it cannot ignore the impact of such an order beyond the parties to the case, should the order of stay be granted or denied, including making a general inquiry as to where the public interest lies. 42.In this application, the deponent to the application has not attached an authority to make this application on behalf of the rest of the plaintiffs or applicants. 43.Paragraphs 1-7 of the supporting affidavit and grounds Nos. 1-6 on the face of the application contains the intended ground of appeal. The 5th plaintiff has not laid any tangible, cogent, empirical, and scientific evidence of the plaintiffs’ developments or assets that they have on the suit properties, which are threatened with destruction by the defendants or respondents. 44.Ideally, the court would have expected the applicants to list out the particulars of those development, their nature, and their relationship to each of the plaintiffs/applicants. A valuation report, perhaps, would have assisted the court to gauge what the alleged substantial loss or damage is posed to the said developments by the respondents. The only attempt is in paragraph 9 of the supporting affidavit, where the deponent attaches photographs that do not comply with Section 106B of the Evidence Act. 45.Paragraph 10 of the supporting affidavit is equally very shallow, gives no details of when the alleged entry occurred and who among the respondents in particular caused the alleged destruction, and if that be so, whether any report was made to the investigative agencies for action. 46.From the judgment of the court at pages 25-30, a site report had been made through the Deputy Registrar of this court. A recent valuation report, crop damage assessment, or a forester’s report to show what the plaintiffs have on the land. 47.Evidence to show which of those developments have been destroyed by the defendants has not been attached to show that there has been a drastic change to the suit properties brought about by the defendants since the site visit process and at the filing of this application. 48.Written submissions as held in D.T. Moi vs Mureithi [ 2014 eklr ], cannot amount to evidence or replace pleadings. Though I agree with the elucidation of the critical principle in the caselaw of Nyatera vs Nyakundi (Supra), Abdi vs Ahmed (Supra), Murakaru vs Kirera & Others (Supra), Sahed & Others vs Mohamed (Supra), Muthigani vs Munene (Supra), the so called compelling evidence demonstrating the risk of destruction of developments, ongoing destructive activities and the continuing irreparable harm by the defendant in the suit properties, that would affect or negate the state of affairs of the substratum of the intended appeal is missing in the supporting affidavit. 49.Coming to the question of delay, the judgment of the court was delivered on 21/1/2026. Though temporary orders of stay were granted for 45 days pending the filing of a formal application for stay, the plaintiffs waited until almost the expiry of the 45 days to lodge the application. What amounts to a delay depends on the circumstances of each case. See Utalii Transport Co. Ltd vs NIC Bank Ltd [2014] eKLR. 50.The reasons for the delay have not been given or explained at all. See Chame vs Adongo & Another (Supra). The respondents have both in the grounds of opposition, replying affidavit, and written submissions expressed the prejudice to be occasioned to them and the attempt to delay their full realisation of the fruits of their judgment. The evidence tendered at the hearing was that the defendants were in occupation of the suit properties before the judgment. The site visit report by the deputy registrar confirmed that. It is therefore not true that the defendants only went into the suit properties after the judgment was delivered. 51.In Kakuzi PLC vs Makuyu Club (Supra), the applicant, just like in this application, claimed that the respondent was making steps toward the execution of the judgment. On the other hand, the respondent, just like in this application, was submitting that it had remained in occupation of the suit property. The court held thus:“Bearing in mind the nature of the competing claims of both parties over the suit property, we find it is just to preserve the status quo by granting the order of stay.” 52.In this application, the plaintiffs have not told the court whether they are in use, possession, and occupation of the suit properties and the nature of their use, occupation, and possession, contrary to what was captured in the court record at the time the interim orders which had been issued in favour of the applicants were discharged or vacated, long before the hearing and determination of the suit. 53.He who comes to equity must do equity and make full disclosure of material facts. Substantial loss refers to any loss, great or small, that is real, worthy, or valuable as held in Tropical Commodities Suppliers Ltd vs International Credit Bank Ltd [2004] eKLR. The applicants have failed to substantiate the same and show how the alleged execution will prejudice them. 54.As to security, the plaintiffs have submitted that they are willing to abide by any reasonable condition that the court may impose upon them, granting the reliefs sought. The plaintiffs, notwithstanding the above, submit that since there was no monetary amount awarded in the judgment, security does not arise. The law is that an application for stay of execution must meet the three conditions distinctly, logically, and sequentially. 55.In Westmart Holdings SDN BHD vs CBK & Others Petition No. 16 [e023] of 2021, the issue was whether an order of security for cost is an unreasonable impediment to a litigant’s access to justice contrary to Articles 48, 50, and 159 of the Constitution. The court said that Article 259(1) of the Constitution provides that in interpreting the Constitution and developing jurisprudence, a court ought to take a purposive interpretation. 56.The court held that in exercising judicial authority, courts are required to be mindful of the spirit, values, and principles of the Constitution, to safeguard a person’s right to have any dispute resolved by application of law decided in a fair and public hearing; thereby ensuring a party’s access to justice is not violated. 57.Security for the due realization of the decree, should the appeal not succeed, is broad in nature. It is not the law that it only applies in monetary decrees. Security may also include security for costs as per Order 26 of the Civil Procedure Rules. In Westmark vs CBK (Supra), the SCOK held that the rationale for security for costs is aimed at balancing the overriding objective in the administration of justice. 58.In Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR, the court said that the purpose of security under Order 42 of the Civil Procedure Rules is to guarantee due performance of such decree or order as may ultimately be binding on the applicant and that it is not to punish the judgment debtor. 59.In Trust Bank (K) Ltd vs Ajah Shah & Others [2013] eKLR, the court said that the conditions set out in Order 42 Rule 2(a) of the Civil Procedure Rules are cumulative and must all be satisfied before a stay can be granted. 60.In this application, the titles to the suit properties are held in the names of one of the plaintiffs/applicants. It is disingenuous of the 5th plaintiff/applicant, therefore, to state on oath that there is no need for security or that there will be no prejudice to the respondents if no security is offered. The said titles have been invalidated by this court through it judgement. The easiest thing that the applicants would have done is to, as a show of good faith, offer to deposit the impugned titles before the court as a condition precedent. It is not for the court to impose, but for the applicants in an application for stay to be candid and to abide by the law. The court finds the condition unsatisfied. 61.As to the temporary injunction pending appeal, the principles applicable were discussed in Trust Bank Ltd & Another vs Investment Bank Ltd & Others [2000] eKLR, and in Stanley Kangethe Kinyanjui vs Tony Keter & Others [2013] eKLR. An applicant has to show firstly that he has an arguable appeal, which is likely to be rendered nugatory in the absence of a stay. The said principles must be considered against the facts and circumstances of each case. Nugatory was defined as worthless, futile, or invalid. To be rendered nugatory, it depends on whether or not what is sought to be stayed, if allowed to happen, is reversible, or if it is not reversible, whether damages will reasonably compensate the aggrieved party. 62.In Kenofric Matches Ltd vs Match Masters Ltd & Another Civil Appl. No. E092 of 2021, the court said that in determining whether an appeal will be rendered nugatory, the court has to consider the conflicting claims of both parties, and each case has to be considered on its merits. In this suit, the court is functus officio and lacks jurisdiction and cannot consider whether or not the intended appeal has merit or high chances of success. 63.To be entitled to such a prayer, the applicants have to demonstrate exceptional circumstances, establish a prima facie case, show irreparable loss or damage, and the balance of convenience guided by the case law of Giella vs Cassman Brown Co. Ltd (Supra), Mrao Ltd vs First American Bank (K) Ltd (Supra), Nguruman Ltd vs Jan Bonde Nielsen & Others (Supra), and Pius K. Kogo vs Frank Kimei (Supra). 64.Demonstration of the two limbs of stay of execution and injunction pending appeal is key, as held in Chris Munga N Bichage vs Richard Nyagaka Tonga & Others [2013] eKLR. See also EACC vs Prof. Tom Ojienda & Associates & Others, C.A No. 21 of 2019. 65.As indicated above, the supporting affidavit to the application for both stay and temporary injunction is shallow or bare on the alleged irreparable loss or damage likely to be occasioned to the applicants in the absence of a stay. 66.An irreparable loss or damage refers to one that cannot be quantified monetarily or capable of being remedied in any other way except through a temporary injunction. If the plaintiffs were to succeed in the intended appeal, there would be an option of eviction of the respondents from the suit land. Entries to the register of the titles are also reversible in nature. Loss of use, occupation, or possession, if any, can be quantified by way of mesne profits. 67.The balance of convenience has also not been substantiated to the satisfaction of the court. In Okombo vs Ajwang Civil Appeal Appl. No. E148 of 2024 [2026] KECA 783 [KLR] (24th April 2026) (Ruling), the court emphasised that the twin principles of arguability and nugatory aspect, as held in Tony Keter matter (Supra), have to be established. Guided by the foregoing caselaw, I find the application lacking merit. It is dismissed with no order as to costs. 68.Orders accordingly. RULING DATED, SIGNED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF JUNE 2026.HON. C.K. NZILIJUDGE, ELC KITALE.RULING DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF JUNE 2026.In the presence of:Court Assistant - Matui/NancyMs. Shah and Ms. Omamo for the 1st - 6th plaintiffs/applicantsMs. Nyakoe holding brief for Mr. Simiyu for the 1st, 3rd, 4th, 5th, and 6th defendants/respondents.2nd defendant in person.