[2025] KEELC 1297 (KLR)

Njogu & 3 others (Suing as officials of Kakuzi-Kinyangi Mixed Organic Farmers - CBO) v Kakuzi Limited (Environment & Land Case E007 of 2023) [2025] KEELC 1297 (KLR) (18 March 2025) (Ruling)

Neutral citation: [2025] KEELC 1297 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment & Land Case E007 of 2023

MN Gicheru, J

March 18, 2025

Between

Murigi Njogu, Catherine Njambi, Ann Kabera, Lucas Ndungu (Suing as officials of Kakuzi-Kinyangi Mixed Organic Farmers - CBO)

Plaintiff

and

Kakuzi Limited

Defendant

Ruling

1. This ruling is on the notice of motion dated 14-2-2025. The motion which is brought under Orders 51 rule 1, 42 rule 6 of the Civil Procedure Rules, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Article 159(2) (d) of the Constitution and all other enabling provisions of the law seeks one residual order namely, Stay of execution of the judgment and decree herein pending the hearing and determination of the intended appeal at the Court of Appeal.

2. The motion is based on seven(7) grounds and is supported by an affidavit sworn by the Applicants dated 14-2-2025. The affidavit has four (4) annexures. The gist of the grounds and the affidavit is as follows. Firstly, the Applicants are officials of Kakuzi-Kinyangi Mixed Organic Farmers CBO. Secondly, on 29-1-2025, this Court delivered its judgement whereby it dismissed the Plaintiffs’ suit with costs and allowed the Defendant’s counterclaim. Thirdly, the Applicants have filed a notice of appeal as they are aggrieved by the decision of the Court. Fourthly, the intended appeal raises serious grounds and has a high probability of success. Fifthly, the Applicants are ready and willing to prosecute the appeal expeditiously. Sixthly, if the orders of stay are not granted, the Defendant will execute the judgement herein and render the intended appeal nugatory. Finally, no prejudice will be occasioned to the Defendant if the orders sought are granted.

3. The motion is opposed by the Respondent and in this regard, Janet Kabaya, the head of the Legal, Gender and Human Rights department of the Respondent has sworn a replying affidavit dated 4-3-2025 in which she replies as follows. Firstly, the Applicants had sought an injunction to restrain the Defendant from interfering with the suit land. The Plaintiff’s suit was dismissed. Secondly, the Defendant’s counterclaim was allowed. It had sought to restrain the Plaintiffs/Applicants from trespassing onto the suit land and interfering with the Defendant’s peaceful possession and occupation. Thirdly, the Defendant is the registered owner of L.R. No. 10731/R and will suffer prejudice if the Applicants’ motion is allowed. Fourthly, the Applicants have not satisfied the requirements for a stay of execution order as they do not stand to suffer substantial loss and they have not provided security for the due performance of the decree.

4. I have carefully considered the motion in its entirety including the grounds, the supporting affidavit, the replying affidavit and the annextures by both sides.Under Order 42 rule 6(2) of the Civil Procedure Rules, it is provided as follows.(2)No order for stay of execution shall be made under subrule(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; andb.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.

5. On substantial loss, I find that the Applicants do not stand to suffer any. This is primarily because they are not in occupation or possession of the suit land. In the judgement dated 29-1-2025 at paragraph 164, the Court had this to say,“The Plaintiffs admitted that they carried out subdivision of the suit land, and also erected beacons. It was their allegation that they have been in occupation and possession of the suit land since 1986. However, this court found and held that there was no evidence of such possession since they never called sufficient evidence to prove that allegation”.Secondly, the Applicants did not annex even a single photograph to show that they have anything of their own on the suit land. There are no structures or crops on the land that belong to the Applicants.Since the Applicants do not occupy the land, they cannot be heard to say that they will suffer substantial loss if the application is not allowed.

6. On the second condition of the application being filed without unreasonable delay, I find that the Applicants are compliant. The judgement sought to be appealed against was delivered on 29-1-2025 and the motion was filed on 14-2-25 which was expeditious.

7. In the supporting affidavit, the Applicants have not offered any security for the due performance of the decree. The only commitment made at paragraph 5 of the supporting affidavit is readiness and willingness to prosecute the appeal. Order 42 rule 6 (2) (b) of the Civil Procedure Rules requires much more than readiness and willingness to prosecute the appeal. Security for the due performance of the decree would for instance include a deposit in Court of costs in the lower Court and estimated costs in the appellate Court in case the appeal is dismissed. There is no commitment by the Applicants to deposit such costs in Court.

8. The three conditions to the grant of an order of stay of execution set out in Order 42 rule 2 of the Civil Procedure Rules are conjunctive and not disjunctive. In other words, all of them must be satisfied before an order for stay can be allowed. The use of the word ‘and’ in subrule (2) (a) immediately after the word ‘made’ and again after the word delay means that all the three conditions must exit in a case before an order of stay of execution is made. In this case, the Applicants have satisfied only one condition of filing the current application without unreasonable delay. They have not satisfied the other two conditions of proving substantial loss and provision of security for the due performance of such decree as may be issued against them.For the above stated reasons, I find no merit in the notice of motion dated 14-2-2025 and I dismiss it with costs to the Respondent.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 18TH DAY OF MARCH, 2025. M.N. GICHERUJUDGE.Delivered online in the presence of; -Court Assistant – Mwangi NjonjoPlaintiffs’ Counsel – Mr OndabuDefendants Counsel – Mr. Bett holding brief