Njeru (Suing as the Legal Representative and/or Substitute of the Late Rufus Njeru Kanambu) v Solomon (Environment and Land Case E077 of 2025) [2026] KEELC 3156 (KLR) (21 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC APPEAL NO. E077 OF 2025** **GIDEON MBOGO NJERU (Suing as the legal** **representative and/or substitute of the late** **RUFUS NJERU KANAMBU..............................APPELLANT/APPLICANT** **VERSUS** **BEDAN NJERU SOLOMON…....…………………………..RESPONDENT** **RULING** 1. Vide the Notice of Motion application dated 07/11/2025, the Applicant is seeking interalia: 2. An order of temporary injunction restraining the Respondent, his agents, servants, and or anyone acting under his instructions from evicting, entering, cultivating, interfering with, alienating or in any other way dealing with the property known as Kyeni/Kigumo/2024 pending the hearing and determination of the appeal; 3. That there be an order of stay of execution of the Judgement, decree and all consequential orders issued in Runyenjes MCELC Case No. E020 of 2023 on 09/10/2025 pending the hearing and determination of the appeal. 4. That there be an order maintaining the prevailing status quo on the ground, that is, that both parties shall preserve the suit property and neither party shall interfere with the Applicants occupation of the suit property pending the hearing and determination of the appeal. 5. That costs of the application be provided for. 6. The application is based on grounds on the face of the application supported by the affidavit of the Applicant Gideon Mbogo Njeru, sworn on 07/11/2025. He deposed that he substituted his father, Rufus Njeru Kanambiu, in the lower court case and therefore he had capacity to swear the affidavit. He stated that on 09/10/2025, the Senior Resident Magistrate delivered judgment in favour of the Respondent, granting him a permanent injunction and police assistance orders restraining him and his family from occupying land parcel Kyeni/Kigumo/2027. That the decree effectively ordered their eviction from their only family home, where they have lived for over five decades. He deposed that the Respondent had already taken steps to execute the decree and threatened to involve the OCS Runyenjes Police Station and unless stay orders are granted, he and his aged father will be rendered homeless, suffering irreparable loss. 7. He averred that he had filed a Memorandum of Appeal raising strong grounds, including misapplication of the law on title, functus officio, and adverse possession and that the appeal is arguable and will be rendered nugatory if execution proceeds before it is heard. The Appellant undertook to abide by any conditions imposed by the Court, including provision of reasonable security. He emphasized that the application was filed without delay, and that substantial loss will result if stay was denied including their eviction form the suit land. He argued that the balance of convenience tilts in his favour, as the Respondent will suffer no prejudice and can be compensated by costs if the appeal fails. He concludes that the Court has jurisdiction and inherent powers under Sections 3A and 63(e) of the Civil Procedure Act to grant the orders sought in the interest of justice. 8. He annexed to the Supporting Affidavit, the judgement and decree in the lower court, the ruling ordering his substitution in the lower court case and a copy of the memorandum of appeal. 9. The Respondent in opposition to the application filed grounds of opposition. He averred that the application has not established that the appeal has any chances of success therefore no prejudice will be occasioned if the appeal and the trial suit proceed simultaneously. **That** the application was a delaying tactic made in bad faith aimed at frustrating the his lawful farming activities, including repeated violent and unlawful trespass onto land parcel Kyeni/Kigumo/2027 and interference with farm workers by the Applicant. He averred that the application and orders sought were an affront to his right to expeditious execution of the decree issued on 9/10/2025 which granted him a permanent injunction and directed the OCS Runyenjes Police Station to enforce the same against the Appellant without unreasonable delay. He stated that the application was premature and fatally defective since no arguable appeal had been demonstrated to warrant the issuance of the orders sought. He urged that the application be dismissed with costs. 10. The Applicant, Gideon Mbogo Njeru filed a supplementary affidavit sworn on 22/01/2026 in response to the grounds of opposition. He averred that contrary to the Respondents allegations, he and his family are currently in actual and physical occupation of the suit land whereas the Respondent does not reside on the land. He stated that the Respondent had not tendered any evidence to support the defamatory claims that he and his family were violent, disruptive or unlawfully interfering with his alleged farming activities. He argued that the appeal raises arguable and weighty issues of law and fact and unless the stay sought is granted, the appeal shall be rendered nugatory as execution will result in his forceful eviction and irreversible alteration of the status of the suit land before the appeal is determined. 11. He stated that he was willing to abide by any conditions that the Court may deem fit to impose including providing of reasonable security for the due performance of the decree. He averred that if execution is allowed to proceed, he will suffer substantial and irreparable loss which includes his eviction from the suit land which his family has occupied for over five decades the land being their ancestral and matrimonial home. He maintained that the application was made without unreasonable delay and urged that it be allowed as prayed. He annexed to the affidavit a bundle of photographs, a certificate of electronic and digital evidence and a medical report for his father said to be ailing and residing on the suit land. 12. The Respondent in response to the supplementary affidavit filed a replying affidavit sworn on 10/02/2026. He averred that the same was misconceived, incurably defective, frivolous, vexatious and an abuse of the court process and urged that the same be dismissed with costs. 13. When the application came up for hearing, the parties agreed to canvass by way of written submissions. The Applicant filed submissions dated 12/02/2026 through the firm of Brian Njagi Njeru Law & Company Advocates. He submitted that he had met the threshold under Order 42 Rule 6 of the Civil Procedure Rules by showing: the application was filed without unreasonable delay; substantial loss will result if eviction proceeds, and willingness to provide security for due performance of the decree. He further submitted that he had satisfied the requirements set out in the case of Giella v Cassman Brown [1973] EA 358 for grant of an order of temporary injunction as he had established a prima facie case with a probability of success, that eviction would cause irreparable injury not compensable by damages, and that the balance of convenience tilted in his favour since the Respondent could be compensated by costs if the appeal failed. 14. The Respondent filed submissions dated 16/02/2026. He submitted that the application failed to meet the requirements of Order 42 Rule 6 of the Civil Procedure Rules, as no substantial loss has been demonstrated, the appeal was not arguable, and the application was a delaying tactic brought in bad faith to frustrate his farming activities. On costs, the Respondent invoked Section 27 of the Civil Procedure Act, submitting that costs should follow the event, and therefore the application should be dismissed with costs to him. 15. Having considered the application, the responses made to it and the parties’ respective submissions, the issues for determination are: 16. Whether the Applicant has satisfied the conditions for grant of stay of execution pending appeal. 17. Whether the Applicant is entitled to an order of temporary injunction. 18. Whether the Applicant is entitled to orders of status quo. 19. The principles governing stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules are well settled. An applicant must demonstrate that the application has been made without unreasonable delay, that substantial loss may result unless the order is granted, and that security for the due performance of the decree has been provided or offered. In the present case, the judgment sought to be stayed was delivered on 09/10/2025, while the application was filed on 07/11/2025, approximately one month thereafter. The court is satisfied that the application was made timeously and without unreasonable delay. 20. On the issue of substantial loss, the Applicant’s case is that execution of the decree would result in his eviction from the suit property, which he contends has been his family home for several decades. It is further contended that such eviction would render the intended appeal nugatory. The Respondent, on the other hand, maintains that the application is intended merely to delay the enjoyment of the fruits of the judgment. However, the decree in question is one that directly affects possession of the suit property, and its execution would result in the Applicant’s eviction. In the event the appeal succeeds after such eviction, the resultant prejudice to the Applicant would not be easily reversible. The court is therefore persuaded that substantial loss has been demonstrated. 21. With regard to security, the Applicant has expressed willingness to comply with any conditions imposed by the court but did not propose any specific sum. Nonetheless, the requirement of security is a matter within the discretion of the court. In the circumstances, the court deems it appropriate to order that the Applicant deposits Kshs. 100,000/= as security for the due performance of the decree, to be made within thirty (30) days of this ruling, failing which the order of stay shall automatically lapse. 22. As regards the prayer for maintenance of status quo, the court is mindful that such an order is intended to preserve the subject matter of the dispute pending appeal and to prevent the appeal from being rendered nugatory. In the present case, there are competing allegations that the Applicant resides on the suit land whereas the Respondent alleges that he does farming activities on the land. The issue of occupation and use therefore remains contested. In the circumstances, it is necessary that the prevailing state of affairs on the ground be preserved. Accordingly, the parties are hereby directed to maintain the status quo obtaining as at the date of this ruling, and neither party shall evict, dispossess, alienate, cultivate new portions, or otherwise deal with the suit property in any manner capable of altering its current condition. In light of the foregoing, the court is not persuaded that a separate order of temporary injunction is warranted, and the same is hereby declined. 23. Costs of the application shall abide the outcome of the appeal. **DATED, DELIVERED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2026** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Brian Njeru for the Appellant/Applicant 2.Respondent in person-present 3. M/S Ruth C/A