Mureu v Wambugu & another (Being sued as Guardians of Mary Wanjiru Wambugu) (Environment and Land Appeal E102 of 2025) [2026] KEELC 3959 (KLR) (30 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT NAKURU** **ELCA NO. E102 OF 2025** **GODFREY MACHARIA** **MUREU……………...……....………………….APPELLANT/APPLICANT** **VERSUS** **GODFREY MAINA WAMBUGU AND** **JOHN NDERITU WAMBUGU (Being sued** **As Guardians of MARY WANJIRU** **WAMBUGU……………………..……………………………RESPONDENTS** *(Being an appeal arising from the Judgment and Order of the Honorable Diasy Mosse delivered on 15th December,2025 in Molo MCELC No.E006 of 2024)* **RULING** 1. This ruling is in respect of the application dated 3rd February, 2026 by the Appellant seeking the following orders: 2. **Spent.** 3. **Spent.** 4. **THAT pending the hearing and determination of this appeal, this honorable court be pleased to stay execution of judgment of Hon. D. Mosse delivered on 15th December, 2025 in MOLO CM ELC NO E006 OF 2024, GODFREY MAINA WAMBUGU AND JOHN NDERITU WAMBUGU (Suing as Guardians of MARY WANJIRU WAMBUGU V GODFREY MACHARIA MUREU) and any other orders issued therein and/or incidental therefrom.** 5. **THAT the costs of this application be awarded to the Applicant.** 6. The application is grounded on the supporting affidavit of Godfrey Macharia Mureu the Appellant who deponed that judgment was delivered on 15th December, 2025 in favour of the Respondents. 7. He deponed that he had lodged an appeal against the judgment which appeal was arguable with high chances of success. 8. He further deponed that since 2001 he has been in occupation of the suit parcel Nakuru/Kapsita/400 after the government allotted him the same. 9. The Appellant also deponed that pursuant to the judgment, the Respondent have attempted to forcibly evict his caretaker and openly intimated that they intended to dispose of the suit parcel. 10. He deponed that the said action would permanently defeat his appeal. He added that if execution proceeded, his appeal would be rendered nugatory. 11. He also deponed that he was willing to abide by any reasonable conditions on security the court may impose. 12. In conclusion, he urged the court that it was in the interest of justice that the application be allowed as prayed. **RESPONSE** 1. The 1st Respondent filed his replying affidavit sworn on 26th February, 2026 where he averred that he has been kept out of his land since 2001. 2. He further averred that they did not intend to sell the suit land but instead put up their homes. He added that the government had placed a caveat on the Kapsita land hence it could not be sold. 3. He averred that the Appellant did not produce evidence that he stood to suffer any substantial loss if the stay orders are not granted. 4. He added that the value of the land could be ascertained and the Appellant compensated for any loss he may suffer. 5. He also averred that the Appellant had not offered any security for the due performance of the decree. 6. He further averred that they will not enjoy the fruits of their judgment if the orders sought are granted. 7. The 1st Respondent urged the court to dismiss the application. **APPELLANT’S SUBMISSIONS** 1. Counsel for the Appellant filed their submissions dated 22nd May, 2025 and identified two issues for determination, whether the application is merited and who should bear costs of the Application. 2. On the first issue, they submitted that if eviction proceeds, the Applicant will be dispossessed of land that he has occupied since 2001 after being relocated there by the Government following the 1992 tribal clashes. They argued that this would result to substantial loss as he would be deprived of his land. 3. They relied on the case of **RWW V EKW [2019] eKLR** and submitted that there was risk that the Respondents would deal with the suit property in a manner that defeated the appeal. They added that should the land be transferred or otherwise alienated, the substratum of the appeal will be destroyed. 1. They submitted that the learned trial magistrate observed that the Respondents were not men of means. They argued that the said finding was crucial since it meant that even if the appeal succeeded, restitution would be impossible. They cited the case of **National Industrial Credit Bank Ltd V Aquinas Francis Wasike, CIVIL APPLICATION NO. NAI. 238 OF 2005 (UR. 144/2005).** 2. They also submitted that the Appellant was willing to provide security for the due performance of the decree. On the issue of delay, they submitted that the Appellant moved the court promptly after delivery of judgment. They added that there was no inordinate delay. 3. Counsel argued that the claim by the Respondents that the Appellant can be compensated in damages was legally untenable since land is a unique asset and not readily substitutable. 4. They submitted that the balance of convenience tilted in favour of maintaining the status quo since the Appellant was in possession of the suit property, while the Respondents have never occupied it for more than 25 years. 5. They submitted that the Applicant satisfied all the requirements for the grant of stay of execution pending appeal. They urged the court to exercise its discretion in favour of the Applicant by granting an order for stay of execution, preserving land parcel NAKURU/KAPSITA/400 pending the hearing and determination of the appeal. 6. On the final issue of costs, they urged the court to order that the same be in the cause. **RESPONDENTS SUBMISSIONS** 1. Counsel for the Respondent filed his submissions dated 11th May, 2026 where he relied on **Order 42 Rule 6 of the Civil Procedure Rules** and submitted that the Application failed to meet the threshold for grant of an order of stay of execution pending appeal. 2. He cited the case of **Mbae V Kiiru & Another (Civil Appeal 28 of 2024) [2025]** and submitted that the conditions for grant of stay were conjunctive and failure to satisfy them all was fatal. 3. On substantial loss, he relied on the case of **Kenya Shell Limited V Kibiru [1986] KLR 410** and submitted that the Appellant did not produce evidence of substantial loss he may suffer if the stay orders are not granted. 4. On unreasonable delay, it was counsel’s submission that judgment in MCELC E006/2024 was delivered on 15th December, 2025 while the Applicant filed the instant application on 3rd February, 2026 culmination to a period of 50 days. 5. He relied on the case of **Machira t/a Machira & Co. Advocates V East African Standard [2002]** and submitted that the Applicant failed to explain the 50 days delay hence the same was inordinate and unreasonable in the circumstance. 6. On security for due performance of decree, it was counsel’s submission that the said security was mandatory to protect the successful party. He argued that the Applicant did not offer security and in the absence of the same, the application fails. 7. In conclusion, he urged the court to find that the application dated 3rd February, 2026 lacked merit and should be dismissed with costs. 8. court. **ANALYSIS AND DETERMINATION** 1. The main issue for determination is whether the application is merited. 2. **Order 42 Rule 6 (1)(2) of the Civil Procedure Rules** provides as follows; **“(2) No order for stay of execution shall be made under sub rule (1) unless—** **(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and** **(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”** 1. The Appellant filed this application and the Memorandum of Appeal on 3rd February, 2026 and 22nd December, 2025 respectively while the judgment was delivered on 15th December, 2025. This culminates to a time difference of less than 2 months. 2. The issue of an application being filed timeously is one of the limbs to be satisfied by the Appellant and in light of the above, this court is of the view that the delay was not inordinate. 3. On whether this court is satisfied that the Appellant will suffer substantial loss in the event that stay of execution is not granted, the Appellant argued that he stood to be evicted from the suit parcel which he has been in occupation since 2001. 4. The Respondents on the other hand argued that the Appellant did not produce evidence of substantial loss he may suffer if the stay orders are not granted. 5. In the case of **Siegfried Busch V MCSK [2013] eKLR,** the court held as follows: **“A superior court to which an application has been made must recognize and acknowledge the possibility that its decision for refusal to grant a stay of execution could be reversed on appeal. It would be best in those circumstances to preserve the status quo so as not to render an appeal nugatory. Even in doing so, the court should weigh this against the success of a litigant who should not be deprived of the fruits of his judgment...”** 1. In the instant case, this court is convinced that the Appellant has not demonstrated that he will suffer substantial loss if stay of execution is not granted. Notably, there is not evidence that the Respondent intend to sell the suit parcel to a third party. 2. The Appellant has also stated that he is ready and willing to offer security for the due performance of the decree subject to the court’s direction. 3. I am of the view that the orders sought are discretionary which this court ought to exercise judiciously. 4. In the case of **Kenya Commercial Bank Limited V Sun City Properties Limited & 5 Others [2012] eKLR** the court held as follows: **“in an application for stay, there are always two competing interests that must be considered. These are that a successful litigant should not be denied the fruits of his judgment and that an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory. These two competing interests should always be balanced in a bid to balance the two competing interests, the Courts usually make an Order for suitable security for the due performance of the Decree as the parties wait for the outcome of the Appeal. I do not see, why the same should not be applicable in this case."** 1. The upshot of the matter is that I find merit in the application and the same is allowed in the following terms:- 2. **That a stay of execution of the judgment of Hon. D. Mosse delivered on 15th December 2025 in Molo CMELC No. E006 of 2024; is granted;** **on condition that the Appellant does deposit Kshs500,000/= being security for costs in a joint interest earning account in the names of the Advocates for the Appellant and for the Respondents within forty-five (45) days from the date of this ruling.** **In default the orders of stay of execution shall lapse automatically.** 1. **That the Applicant is directed to file the Record of Appeal within sixty days (60) so that the Appeal can be heard expeditiously.** 2. **That cost of this application shall abide the outcome of the Appeal.** **Ruling dated, signed and delivered virtually at Nakuru this 30th day of June 2026** **L KOMINGOI** **JUDGE** **In presence of :-** No appearance for the Appellant Mr. Ndungu for the Respondents Court Assistant : Irene/Derrick