https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2922

Mwangi & 3 others (Being Administrators of the Estate of Francis Mwangi Thuo - Deceased) & another v Theuri & 2 others (Environment and Land Appeal E002 of 2026) [2026] KEELC 2922 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 2922 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Appeal E002 of 2026 MD Mwangi, J May 15, 2026 Between Milka Waithera Mwangi, Anne Nyambura Mwangi, Joseph Wainaina Thuo & Peter Gachigi Thuo (Being Administrators of the Estate of Francis Mwangi Thuo - Deceased) 1st Appellant Frecam Investments Limited 2nd Appellant and Samuel Kimondo Theuri 1st Respondent James Kamanu Gathura 2nd Respondent The County Government Of Kajiado 3rd Respondent (Being an appeal against the Judgment and Decree of Hon. R.A. Oganyo, Chief Magistrate, delivered on 12th March 2026 in Kajiado MCELC No. 144 of 2018) Ruling Introduction 1.Before this Court for determination is the Notice of Motion application dated 26th March 2026, brought by the 1st and 2nd Appellants/Applicants. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1, 1A, 3, and 3A of the Civil Procedure Act. 2.The application seeks an order for stay of execution of the Judgment and Decree of Hon. R.A. Oganyo, Chief Magistrate, delivered on 12th March 2026 in Kajiado MCELC No. 144 of 2018, pending the hearing and determination of the Appeal herein. 3.The application is predicated on the grounds set out on the face of the Motion and supported by the Affidavit of Waithira Mwangi. The Applicants contend that in the judgment delivered on 12th March 2026, the trial court found in favor of the 1st Respondent and ordered the 2nd Appellant to vacate the suit property—described as Plot No. A101, also known as Plot No. 104 Business Noonkopir Trading Centre—by 12th April 2026. 4.The Applicants argue that the 2nd Appellant has been in possession of the suit property since 2009 and that they have preferred an appeal that raises arguable points with a high probability of success. They further express apprehension that unless the court intervenes, the 1st Respondent will proceed with eviction, leading to irreparable loss, disruption of business operations, and distress to the tenants currently occupying the premises. It is their position that without a stay, the appeal would be rendered nugatory. 5.The application is vehemently opposed by the 1st Respondent, Samuel Kimondo Theuri, through a Replying Affidavit sworn on 24th April 2026 and a Further Affidavit sworn on 28th April 2026. The 1st Respondent asserts that he is the lawful allottee and proprietor of the suit property, supported by a Letter of Allotment dated 16th August 2017 and various county council records. 6.He characterizes the application as a tactic to delay the fruits of a judgment delivered after a full hearing on the merits. He further contends that the Applicants have failed to demonstrate that they will suffer substantial loss as required under Order 42 Rule 6 and have not offered sufficient security for the due performance of the decree. 7.The background of the dispute involves conflicting claims over the suit property, with the Appellants asserting ownership of Plot No. 70 formerly Plot No. 64 Business Noonkopir T. Center, while the 1st Respondent maintains his right to Plot No. 104. 8.The trial court's judgment, now the subject of this intended appeal, concluded that the 1st Respondent is the rightful owner and ordered the Appellants' eviction. Issues for determination 9.I have carefully considered the Notice of Motion dated 26th March 2026, the Supporting and Replying Affidavits, and the rival written submissions filed by both parties. 10.The power of the court to grant a stay of execution is discretionary. However, this discretion must be exercised judicially and within the framework of the law. The primary provision governing such applications is Order 42, Rule 6(2) of the Civil Procedure Rules, which provides:“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." 11.Flowing from the above provision and the submissions made, the issues for determination are:a.Whether the application has been made without unreasonable delay;b.Whether the Applicants have demonstrated that they will suffer substantial loss unless the stay is granted andc.Whether the Applicants have provided or are willing to provide security for the due performance of the decree. Analysis And Determination 12.The Judgment sought to be stayed was delivered on 12th March 2026. This application was filed on 26th March 2026, a mere fourteen (14) days later. This Court finds that the application was moved with commendable promptitude and certainly without unreasonable delay. 13.The Applicants contend that they have been in possession of the suit property since 2009 and have developed it with commercial premises currently occupied by tenants. They argue that eviction would cause irreparable loss and render their appeal nugatory. The Respondent counters that loss is not "substantial" simply because it is a consequence of a lawful judgment. 14.In defining "substantial loss," the court in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR stated that:“The applicant must establish other factors which show that the execution will create a state of affairs that will never be reversed or that the stay is needed to preserve the status quo." 15.In the present case, the subject matter is land with existing commercial structures. If the 1st Respondent proceeds to execute by way of eviction and potential demolition or handover of the structures, the status quo would be irreversibly altered. Given that the 2nd Appellant’s livelihood and the interests of third-party tenants are tied to the property, I am satisfied that the Applicants have demonstrated that substantial loss may indeed result if execution proceeds before the appeal is heard. 16.The third limb of Order 42 Rule 6(2) requires the provision of security. The purpose of this requirement is to balance the interests of the parties—ensuring the Applicant is protected from substantial loss while the Respondent is assured that the fruits of their judgment are preserved should the appeal fail. 17.In Arun C. Sharma v Ashana Raikundalia T/A Raikundalia & Co. Advocates [2014] eKLR, the Court held:“The purpose of the security for due performance is to ensure that the Respondent does not suffer in the event the appeal is not successful. The court must balance the interests of the Appellant who has a right of appeal and those of the Respondent who is entitled to the fruits of his judgment." 18.The Applicants have proposed a novel and pragmatic form of security: the appointment of an independent Estate Agent to collect the rental income from the suit property and deposit it into a joint interest-earning account. The 1st Respondent objects, claiming this is insufficient. 19.However, this Court finds that since the primary "fruit" of the judgment for the Respondent (beyond possession) would be the economic benefit of the property, the impounding of the rent serves as a robust form of security. It ensures that the funds are preserved and can be released to the successful party upon the conclusion of the appeal. 20.Having found that the application was filed timeously, that substantial loss is likely to occur, and that the Applicants are willing to provide security, I find that the Notice of Motion dated 26th March 2026 is merited. 21.Accordingly, I make the following orders:A.An Order of Stay of Execution of the Judgment and Decree delivered on 12th March 2026 in Kajiado MCELC No. 144 of 2018 is hereby granted pending the hearing and determination of the Appeal.B.The 1st and 2nd Appellants are directed to identify and move the Court within fourteen (14) days for the appointment of a mutually agreed-upon independent Estate Agent.C.All rental income collected from the suit property (Plot No. 104 Business Noonkopir Trading Centre) shall be deposited by the said Estate Agent (once appointed) into a joint interest-earning account in the names of the Advocates for the Appellants and the Advocates for the 1st Respondent.D.The Costs of this application shall abide the outcome of the Appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Munguti for the Appellants/ApplicantsMs. Orimba h/b for Mr. Njenga for the 1st RespondentN/A by the 2nd and 3rd RespondentsCourt Assistant: Alex