https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4710

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCA NO E035 OF 2025** **JOSEPH KIGERA MUNGAI………………………..............1ST APPELLANT/APPLICANT** **RACHEL MUKUHI NDUNG’U……………………............2ND APPELLANT/APPLICANT** **VERSUS** **ANNE MUTHONI NJOGOO.......................................................................1ST RESPONDENT** **OLIVIA WACUKA NJOGOO....................................................................2ND RESPONDENT** **(Administrator of the Estate of FRANCIS NJOGOO MWATATI** **alias JOGOO MWATATI)** ***(Being an Appeal from the Decree and Judgment delivered by Honourable Peter Ndwiga (Chief Magistrate) on 31st July, 2025 in MURANG’A CHIEF MAGISTRATE’S COURT ELC NO. E015 OF 2024)*** **RULING** 1. This ruling is on the notice of motion dated 29-5-2026. The motion which is brought under Section 3A of the Civil Procedure Act seeks two (2) residual orders as follows. **2. The Appeal filed herein be struck out for being incompetent, scandalous and an abuse of the process of this Court.** **3. That the caution lodged by Joseph Kigerah Mungai Ndungu and Rachel Mukuhi Ndungu against land parcel No. Maragua Ridge/2781 be removed by the Land Registrar Murang’a.** 1. The motion is based on one ground and is supported by an affidavit of the Respondents dated 29-5-2026. The gist of the ground and the affidavit is as follows. One, the cautioners lodged a caution against the suit land, Maragua Ridge/2781 in Murang’a HCCC No. EO86 of 2025 which was later marked as withdrawn on 21-10-2025. Due to the appeal, there were cautions numbers 4 and 5 in the register for the suit land due to case No. E086 of 2025 at Murang’a High Court which had been preferred by the Appellants. The said appeal was later withdrawn as per the order dated 21-10-2025. Two, on 15-4-2026, the Appellants were ordered by this Court to deposit in Court a sum of Kshs 100,000/= within 30 days failing which their appeal would stand dismissed. The Appellants have not deposited the sum as ordered hence this motion. The cautions were lodged mala fides and should be removed so that the decree may be executed. The Respondents cannot enjoy their property rights over the suit land with the caution in place. For the above and other reasons, they pray for the orders. 2. The motion is opposed by the Appellants and the first Respondent, Joseph Kigera Mungai, has sworn a replying affidavit dated 3-6-2026 in which he states the following. Firstly, after the ruling of the Court on 15-4-2026, a deposit of Kshs. 100,000/= ordered by the court to be made within 30 days was duly made on 14-5-2026. Secondly, there is an order of this Court dated 15-4-2026 staying the execution of the judgment and decree issued in case No. ELC E015 of 2024. For the above and other reasons, the motion dated 29-5-2026 is without merit. 3. I have carefully considered the motion dated 29-5-2026 in its entirety including the two affidavits and the Appellant’s written submissions dated 25-6-2026. I find that the following issues arise. 4. **Whether there is an order of stay of execution in this case.** 5. **Whether there was any condition imposed by this Court.** 6. **Whether that condition has been complied with by the Appellants.** 7. **Whether the court can vacate the order of stay issued on 15-4-2026.** 8. Looking at the first issue, I find that there is an order of stay of execution in this case. The said order is to be found at paragraph 8 where it reads as follows. **“However, so that execution does not place before the appeal is heard and determined, I will allow the motion dated 1-9-2025 but on condition that the Appellants deposit in Court Kshs. 100,000/= in the next 30 days failing which the motion will stand dismissed.”** The judgment which was stayed is the one issued by the Chief Magistrate in Murang’a MCELC/E015/2024 which stated as follows at the conclusion. **“An order be and is hereby made that the caution lodged by the Plaintiff’s against land parcel No. Maragua Ridge/Settlement scheme/2781 be removed by the Land Registrar Murang’a”** From the above, the substratum of the appeal is the caution and if it is removed, the appeal will be rendered nugatory. 1. In answer to the 2nd and 3rd issues, I find that there was a condition imposed by the court on 15-4-2026 which was the deposit in court of Kshs. 100,000/= by the Appellant. This condition was complied with as per the deposit receipt CTS invoice Ref. E6FZVJWD dated May 14, 2026 which shows that a deposit of Kshs. 100,000/= was made by Rose Muthoni Obadiah. 2. On the final issue, the Court cannot vacate the order of stay of execution dated 15-4-2026 because in doing so, it would be contravening its own order of stay of execution. 3. For the above reasons, I find **no merit** in the motion dated 29-5-2026 which I **dismiss**. Costs in the cause. **Dated, signed and delivered virtually at Murang’a this 20th day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistants – Antony and Jackline** **Appellants’ Counsel – Mr. Muinde** **Respondents’ Counsel – Mr. T.M. Njoroge**