https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4761

 **REPUBLIC OF KENYA** **IN THE LAND AND ENVIRONMENT COURT AT THIKA** **ELCLA NO. E144 OF 2024** **PETER NJOROGE NJAU…………………..…………APPELLANT/APPLICANT** **VERSUS** **GRACE MUKUHI KIMEMIA……………………….…………….RESPONDENT** **(***Being an application for stay of execution of the Judgment and Decree of the Hon. Meresia Opondo, Senior Principal Magistrate dated and delivered on 17th January 2024 in Kiambu Civil Suit No. 373 of 2017)* **BETWEEN** **GRACE MUKUHI KIMEMIA……………………………...…………..PLAINTIFF** **VERSUS** **PETER NJOROGE NJAU…………………………………………..DEFENDANT** **RULING** 1. This Ruling is in respect of the Notice of Motion dated 6/03/2025 brought before the Court under the authority of Sections 1A, 1B, and 3A of the Civil Procedure Act (Cap. 21). Procedurally, it relies on Order 42 Rule 6(1), (2), and (6), Order 22 Rule 25, and Order 51 Rule 1 of the Civil Procedure Rules, 2010, alongside all other enabling provisions of the law. 2. The Appellant moves the Court for the following: 3. Spent. 4. That the Court issue an *ex-parte* order staying the execution of the Judgment and Decree delivered by Hon. Meresia Opondo, SPM, on January 17, 2024, in **Kiambu Civil Suit No. 373 of 2017**, pending the *inter-partes* hearing of this application. 5. That a formal order for stay of execution of the said Judgment and Decree be granted pending the hearing and determination of this application. 6. That the Court grant an order staying the execution of the Judgment and Decree of the trial Court pending the final hearing and determination of the Appeal. 7. That the costs of this application be in the cause. 8. The application is supported by the Affidavit of Peter Njoroge Njau sworn on and is based on the grounds on the face of the Application. 9. In support of the Notice of Motion, the Applicant, Peter Njoroge Njau, deposes that he is the substantive Applicant and is intimately familiar with the facts of the dispute. He states that following the conclusion of **Kiambu CMCC No. 373 of 2017**, the trial Court rendered a Judgment on 17/01/2024, a copy of which is produced and marked as **Annexure “PNK-1”**. The deponent avers that the said Judgment issued various orders, most notably a directive for the sub-division of the suit property, L.R. Number Ndumberi/Riabai/3765, within a ninety-day window. 10. The Deponent further states that, being aggrieved by the decision, he moved the High Court for leave to appeal out of time. This leave was subsequently granted by consent on 28/10/2024, before Hon. Lady Justice Mshila. Crucially, the deponent points out that while the High Court extended interim stay orders to protect the subject matter, these orders are due to lapse on 12/03/2025. He refers to the formal Court Order dated 19/10/2024, marked as **Annexure “PNK-2”**, which confirmed the extension of those interim protections. 11. The Affidavit raises serious concerns regarding substantial loss, with the deponent averring that the sub-division of the property would lead to the destruction of his extensive investments. He asserts that his appeal is not frivolous but is instead grounded in cogent and triable issues. Specifically, he contends that the trial magistrate misinterpreted Section 2 of the Matrimonial Property Act by over-emphasizing non-monetary contribution without evidentiary support, thereby infringing upon his proprietary rights under Article 40 of the Constitution. He further argues that the Court failed to recognize the parties' early separation and considered extraneous factors not contained in the pleadings. These grounds are detailed in the Memorandum of Appeal dated 10/12/2024, produced as **Annexure “PNK-3”**. 12. Finally, the deponent maintains that he has approached the Court with promptitude and expresses a firm willingness to provide security for the performance of the decree. He concludes by stating that unless a stay is granted, the appeal which he is advised has high chances of success will be rendered a mere academic exercise and a nugatory outing, resulting in a grave miscarriage of justice. 13. The Application is opposed. The Respondent filed a Replying Affidavit sworn by the deponent, Grace Mukuhi Kimemia on 24/03/2025 and she opposes the Applicant’s application dated 6/03/2025, averring primarily that the application is devoid of urgency and constitutes a gross abuse of the Court process. She points out that following a Judgment delivered on 17/01/2024, the Applicant failed to lodge an appeal within the statutory thirty-day window and instead embarked on a streak of forum shopping across various Courts to secure stay orders. The Respondent contends that the Applicant has exhibited indolence by sleeping on his rights and only moved to prosecute his application for leave to appeal out of time as an afterthought once the decree-holder proceeded with the execution of the Judgment. 14. On the merits of the underlying dispute, the Respondent avers that she is the primary purchaser of the suit property, having enjoined the Applicant on the title only due to their then-cohabitation, and that she was awarded a superior share by the trial Court after demonstrating her substantial financial contributions toward the farmhouse, perimeter wall, and other developments. 15. She further asserts that the Applicant has enjoyed exclusive use of the land for a decade to her detriment through the use of physical violence and intimidation, leading to previous criminal proceedings. The Respondent highlights that in July 2024, in the absence of any stay orders, she moved to the ground and successfully demarcated the respective portions of the land. This physical demarcation is evidenced by photographic annexures marked as **GMK1,** which depict the two distinct portions of land as they currently stand. 16. Furthermore, the Respondent raises a serious indictment of the Applicant’s professional conduct and candor, stating that he suppressed material facts by failing to disclose that a similar application was live before the High Court at Kiambu in **HCC MISC E053 of 2024.** She notes that while the Applicant was seeking interim orders in this Court, the Kiambu Court, where she was present on 12/03/2025 declined to extend interim orders and closed that file because the Applicant had failed to file his submissions for over four months. 17. She maintains that the High Court at Kiambu lacked the requisite jurisdiction to handle the matter and that the leave to appeal was purportedly obtained via a consent to which she never provided instructions. Consequently, the Respondent prays that the Court maintains the current status quo, allowing each party to occupy their already demarcated portions, and urges the Court to dismiss the application for being misconceived and an attempt to deny her the fruits of her Judgment through procedural maneuvers. 18. Before the Application was heard the Respondent filed a Notice of Preliminary Objection dated 30/05/2025. The Respondent, Grace Mukuhi Kimemia, filed the Notice of Preliminary Objection seeking the dismissal of both the current application and the main appeal with costs. 19. The objection is grounded on three primary arguments. First, the Respondent contends that the Court which granted the Appellant leave (permission) to file the appeal out of time lacked the jurisdiction to do so, rendering that order invalid. Second, as a direct consequence of that jurisdictional defect, the Respondent argues that both the application and the appeal are legally time-barred and must be struck out. Finally, the Respondent highlights a procedural duplication, noting that on 11/03/2025, the Appellant had already appeared before the exact same Court in **High Court Commercial Case (HCCC) Miscellaneous Application No. E053 of 2024** to seek the identical orders being requested in this current application. 20. The Appellant/Applicant opposes the Respondent’s Preliminary Objection on the primary basis that it is a strategic afterthought designed to relitigate issues that are already spent and determined by a Court of competent jurisdiction. The Appellant contends that the High Court of Kenya at Kiambu, in Miscellaneous Application No. E036 of 2024, heard and determined the issue of leave to file the appeal out of time with the full participation, acquiescence, and consent of the Respondent, thereby rendering the current challenge improper. 21. It is the Appellant’s position that the objection challenging the High Court’s jurisdiction is fundamentally misconceived, as the Court exercised its inherent powers under Section 3A of the Civil Procedure Act to ensure the ends of justice, and the scope of that application was strictly confined to the extension of time rather than a merit-based determination of property rights under Article 162(2)(b) of the Constitution or Section 13 of the Environment and Land Court Act. 22. Furthermore, the Appellant clarifies that there is no risk of a multiplicity of suits or a conflict of orders, as **Kiambu High Court Miscellaneous Application No. E053 of 2024**, which had sought temporary stay of execution for want of an alternative forum, has since been concluded and the file formally closed. 23. The Appellant further avers that the Preliminary Objection is a veiled attempt to stall the seat of justice and defeat a substantive right of appeal through reliance on procedural technicalities, which directly contravenes the constitutional mandate under Article 159(2)(d) requiring Courts to administer justice without undue regard to technicalities of procedure. Ultimately, the Appellant maintains that the objection is frivolous, vexatious, and an outright abuse of the Court process, and therefore prays that the same be dismissed with costs. 24. Both the Application and the Preliminary Objection were canvassed by way of written submissions. The Applicant filed their written submissions in support of the Application dated 09/06/2025 and additional submissions in support of the grounds of opposition an in opposition to the Preliminary Objection dated 23/02/2026. The Respondent on his part filed their written submissions in support of the Preliminary Objection dated 3/09/2025. I have considered the same in the ruling. **Analysis and Determination** 1. The two issues falling for determination are: 2. Whether the Respondent's Preliminary Objection is merited in law so as to dispose of both the application and the appeal; and 3. Whether the Applicant has satisfied the conditions under Order 42 Rule 6 of the Civil Procedure Rules 2010 for the grant of a stay of execution pending the hearing and determination of the appeal. 4. The threshold for a valid Preliminary Objection is well settled and was authoritatively stated in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, where Law JA held at page 700 that: ***"A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration****."* Sir Charles Newbold P. added at page 701 that: ***"A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 1. The Respondent raises three grounds in her Preliminary Objection that the Court granting leave to appeal out of time lacked jurisdiction, that the application and appeal are consequently time-barred, and that there is procedural duplication with **HCC Miscellaneous Application No. E053 of 2024.** On examination, the first and second grounds present a pure point of law capable of determination without recourse to facts whether the High Court at Kiambu, exercising its general civil jurisdiction under Sections 3A of the Civil Procedure Act, had competence to extend time for filing an appeal originating from a civil matter in the subordinate Court. 2. The Appellant's contention that the leave was granted by consent and with the Respondent's participation does not dissolve the jurisdictional question, as jurisdiction cannot be donated by consent of parties where it does not otherwise exist in law see **Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR**, where the Supreme Court held that ***"a Court can only exercise jurisdiction as conferred by the Constitution or the law."*** 1. On this first issue, the Preliminary Objection raises a valid pure point of law. However, having carefully examined the record, the High Court at Kiambu acted within its inherent powers in extending time in a civil appellate matter from the subordinate Court, an exercise squarely within its civil appellate jurisdiction under Section 75 of the Civil Procedure Act. 2. The question of duplication raised in the third ground is a factual matter whether the same application was pending simultaneously in two Courts which requires ascertainment of facts, and therefore falls outside the proper scope of a Preliminary Objection per **the Mukisa Biscuit** rule. On this ground, accordingly, the Preliminary Objection fails. As the Appellant has further confirmed on affidavit that **HCC Miscellaneous Application No. E053 of 2024** has since been closed, the concern of multiplicity of proceedings is moot and spent. 3. Turning to the substantive application for stay of execution under Order 42 Rule 6, the applicable legal standard demands that an Applicant demonstrate three cumulative conditions: that substantial loss may result unless the order is granted; that the application has been made without unreasonable delay; and that security for the due performance of the decree has been offered. The element of substantial loss is the cornerstone of the jurisdiction. In **Kenya Shell Limited v Kibiru [1986] KLR 410,** the Court held that: ***"It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event."*** 1. The Applicant's case for substantial loss rests on the nature of the decree itself an order for the subdivision of the suit property, L.R. Number Ndumberi/Riabai/3765 which he contends would destroy his investments and render the appeal nugatory. This Court accepts that where an order for physical subdivision and partition of land is in issue, the resultant loss is by its very nature irreversible and incapable of adequate compensation in damages. Unlike monetary decrees, the subdivision of land and resultant alienation of title creates an altered state of affairs that cannot simply be unwound upon a successful appeal. 2. The concern is further sharpened in this case by the Respondent's own averment that demarcation of the two portions was carried out in July 2024, making the risk of further irreversible action palpable and proximate. As Hancox JA stated in **Civil Appeal E005 of 2022 (quoting Cotton LJ in Wilson v Church (No.2) (1879) 12 ChD 454** at **page 458):** ***"I wish to state my opinion that when a party is appealing, exercising his undoubtedly right of appeal, this Court ought to see the appeal, if successful, is not rendered nugatory."*** 1. The balancing exercise this Court must perform, however, also accounts for the Respondent's equally legitimate right to the fruits of her Judgment. Thus, the Court must weigh the quest for justice by the Applicant and the Respondent’s rightful claim to their Court victory, which cannot be paused without strong, proven reasons. 2. On the question of delay, the Respondent correctly notes that the Applicant failed to lodge an appeal within the statutory thirty-day window following Judgment on 17/01/2024, and only moved for leave to appeal out of time when execution was imminent. This conduct falls far short of the promptitude required. Yet the fact of delay alone cannot be dispositive where the subject matter of the decree is irreversible in character. The Court notes that once leave to appeal was granted a matter now settled and having the force of a Court order the Applicant has moved diligently to protect the subject matter and has expressly offered to provide security for the due performance of the decree. 3. The willingness to provide security is a mark of good faith and distinguishes this application from those aimed merely at defeating the fruits of Judgment. As the Court stated in **Muguna & Another v Mwania & Another (Suing as the legal representatives of the Estate of Brayan Ochieng' Okoth) (Civil Appeal 258 of 2023) [2026] KEHC 1630 (KLR**) quoting an earlier formulation: **"Where the Applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the Respondent the fruits of Judgment. My view is that it is sufficient for the Applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security."** 1. This Court is further guided by the admonition in **Okaka & Another v Wesonga (Civil Appeal E033 of 2022)** that when faced with a stay application, the Court **"ought to weigh the likely consequences of granting or not granting the stay and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome,"** opting for the lower rather than the higher risk of injustice. In this case, the higher risk lies in refusing stay, because the subdivision of land once executed to title stage cannot be reversed upon a successful appeal, whereas the Respondent's interest can be protected through a robust security order. 2. The merits of the appeal, while not to be determined at this stage, form a relevant backdrop. The Appellant avers that the learned trial magistrate misapplied Section 2 of the Matrimonial Property Act by overemphasizing non-monetary contributions without evidentiary basis, and violated Article 40 of the Constitution by failing to protect the Appellant's proprietary rights. These are not frivolous points. They raise triable issues of law touching on the correct interpretation of the Matrimonial Property Act and the standard of evidence required to establish non-monetary contribution to matrimonial property, matters that are live and contested in appellate Courts. 3. The Court is satisfied that the appeal is not a mere delaying tactic. The constitutional mandate under Article 159(2)(d) to administer justice without undue regard to procedural technicalities further counsels in favour of granting the stay to preserve the integrity and utility of the appellate process, rather than allowing the subject matter to be dissipated before the appeal is heard on its merits. **Final Disposal Orders** 1. Having considered the Preliminary Objection, the application for stay of execution, the Replying Affidavit, and all written submissions, the Court makes the following orders: 2. ***The Respondent's Preliminary Objection dated 30/05/2025 is hereby dismissed, the Court finds that the Respondent’s participation and consent to the orders in the High Court at Kiambu prevents her from raising a jurisdictional challenge at this late stage as a preliminary point, as the issue of leave is now spent.*** 3. ***The appeal is deemed properly filed before the correct forum being the Environment and Land Court following the leave granted, and the challenge that it is time-barred is dismissed.*** 4. ***The Applicant's Notice of Motion dated 6/03/2025 is hereby allowed and an order of stay of execution of the Judgment and Decree delivered by Hon. Meresia Opondo, SPM, on 17/01/ 2024 in Kiambu Civil Suit No. 373 of 2017 is hereby granted, pending the hearing and final determination of the Appeal.*** 5. ***The stay is granted conditionally. The Applicant shall, within thirty (30) days of this Ruling, provide security for the due performance of the Decree being Kesh 300,000 to be deposited in a joint account of the Counsel for the Appellant and Respondent as security for the performance of the Decree, failing which the stay order shall stand vacated.*** 6. ***The status quo with respect to the suit property, L.R. Number Ndumberi/Riabai/3765, including any physical demarcation already carried out, shall be preserved and neither party shall take any further steps toward formal subdivision, registration of new titles, or alienation of any portion of the property pending the determination of the appeal.*** 7. ***The costs of both the Preliminary Objection and the application shall be in the cause.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 22ND DAY OF JULY 2026.** **…………………….** **MOGENI J** **JUDGE** **In the virtual presence of**: Mr. Kiprotich for the Appellant Mr. Kirori for the Respondent Mr. Melita - Court Assistant **...........................** **MOGENI J** **JUDGE**