Njoroge v Muinami & another [2025] KEELC 5442 (KLR)
- Citation
- [2025] KEELC 5442 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Environment and Land Court
- Panel
- MN Gicheru
- Case number
- Environment and Land Appeal E042 of 2024
- Language
- English
More details
- Court
- Environment and Land Court
- Panel
- MN Gicheru
- Case number
- Environment and Land Appeal E042 of 2024
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the only compelling reason to grant a stay of execution was the 1st respondent's admission of her intention to dissolve the trust and potentially alienate the suit land before the appeal is heard. If the trust were dissolved and the land sold to third parties, the pending appeal would be rendered nugatory, as the subject matter would no longer be available for adjudication. The court therefore exercised its discretion to grant a stay of execution to preserve the status quo and ensure that the appeal is not rendered academic. The court did not find merit in the other grounds advanced by the appellant, such as delay or alleged injustice to his family, but allowed the motion solely on the basis of preventing the possible alienation of the suit land before the appeal is determined.
Court disposition
Motion for stay of execution allowed in terms of prayer 3; costs in the cause.
Orders
- Stay of execution of the ruling, consequential order and proceedings of Murang’a MCELC Case No. E011/2022 pending the hearing and determination of the appeal.
- Costs of the application to be in the cause.
02
Material facts
Parties
Richard Maina Njoroge
Appellant Counsel: Miss MainaSusan Wanjira Muinami
Respondent Counsel: Mr Mbue NdegwaLand Registrar Murang’a
Respondent03
Procedural history
Posture
Environment and Land Appeal / Ruling on Stay Application Pending Appeal
04
Questions and positions
Legal issues
- 01
Whether the appellant is entitled to a stay of execution of the lower court's ruling and consequential orders pending appeal.
- 02
Whether the dissolution of the trust and potential alienation of the suit land would render the appeal nugatory.
- 03
Whether the application for review was made without undue delay and with sufficient cause.
Party arguments
- Applicant
- The appellant seeks a stay of execution of the lower court's ruling, arguing that the trial court's decision dispossessed him and his family of their land based on an unproven trust. He contends that the paternity of the 1st respondent's child is contested and unresolved, and that execution of the decree would cause grave injustice to his family, who have a right to the land as it is inherited. He asserts that the application for review was made without delay, citing health and financial constraints, and that if the trust is dissolved before the appeal is determined, the land could be alienated, rendering the appeal nugatory.
- Respondent
- The 1st respondent opposes the motion, stating that the suit land has already been registered in the joint names of the appellant, herself, and John Brian Muinami Maina in execution of the judgment. She argues that the application for review was filed after an inordinate delay and was dismissed for lack of merit. The appellant was represented by competent counsel and cannot excuse his failure to appeal on time. She has instructed her advocates to dissolve the trust and argues that, since the review application was dismissed, there is nothing left to stay.
05
Court’s reasoning
Legal principles
- 01
Order 42 of the Civil Procedure Rules, 2010; case law on stay of execution pending appeal.
A stay of execution may be granted where the applicant demonstrates that, absent such stay, the appeal would be rendered nugatory.
- 02
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act.
The court has discretion to grant a stay of execution to preserve the subject matter of the appeal and prevent irreparable harm.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the only compelling reason to grant a stay of execution was the 1st respondent's admission of her intention to dissolve the trust and potentially alienate the suit land before the appeal is heard. If the trust were dissolved and the land sold to third parties, the pending appeal would be rendered nugatory, as the subject matter would no longer be available for adjudication. The court therefore exercised its discretion to grant a stay of execution to preserve the status quo and ensure that the appeal is not rendered academic. The court did not find merit in the other grounds advanced by the appellant, such as delay or alleged injustice to his family, but allowed the motion solely on the basis of preventing the possible alienation of the suit land before the appeal is determined.
Obiter and limits
- The court refrained from delving deeply into the merits of the appeal since it is still pending before it.
- Costs of the application are to be in the cause.
Court disposition
Motion for stay of execution allowed in terms of prayer 3; costs in the cause.
- Stay of execution of the ruling, consequential order and proceedings of Murang’a MCELC Case No. E011/2022 pending the hearing and determination of the appeal.
- Costs of the application to be in the cause.
Source and reliance status
Environment and Land Court
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Judgment reading view
Judgment text
The complete available source text.
Environment and Land Court
Judgment
Njoroge v Muinami & another (Environment and Land Appeal E042 of 2024) [2025] KEELC 5442 (KLR) (21 July 2025) (Ruling)
Neutral citation: [2025] KEELC 5442 (KLR)
Republic of Kenya
In the Environment and Land Court at Muranga
Environment and Land Appeal E042 of 2024
MN Gicheru, J
July 21, 2025
Between
Richard Maina Njoroge
Appellant
and
Susan Wanjira Muinami
1st Respondent
Land Registrar Murang’a
2nd Respondent
Ruling
1. This ruling is on the notice of motion dated 22-10-2024. The motion which is by the Appellant seeks three (3) residual orders as follows.3. Stay of execution of the ruling, consequential order and proceedings of Murang’a MCELC Case No. E011/2022 pending the hearing and determinant of the appeal.4. The court be pleased to make such further orders and issue any other relief it may deem just to grant in the interest of justice.5. That the costs of this application be in the cause.
2. The motion which is brought under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 42 rule of the Civil Procedure Rules, 2010 and all enabling provisions of law is based on twenty three (23) grounds and is supported by an affidavit of Appellant dated 22-10-2024 which has five (5) annexures. The gist of the entire motion is as follows. One, the Appellant instituted the lower court suit seeking the removal of a caution registered against his land parcel No. Loc. 20/Mirira/4800. The caution had been registered by the second Respondent at the behest of the first Respondent. Two, at the conclusion of the trial, the learned trial magistrate found that Applicant held the suit land in trust for the 1st Respondent and one John Brian Muinami Maina. Three, aggrieved by the judgment, the Appellant filed an application for review of the judgment and decree of the court which application was dismissed by the court vide a ruling dated 18-9-2024. This appeal is against that particular ruling of 18-9-2024. Four, the decision of the trial court has completely dispossessed the Appellant and his family of the suit land on the grounds of an unproved trust because the court failed to consider that the Appellant has a wife and two Children who have effectively been locked out of the suit land. Five, the paternity of the 1st Respondent’s child remains contested by the Appellant and it was not resolved.
3. The motion is opposed by the 1st Respondent who has sworn a replying dated 27-11-2024 in which she replies as follows. Firstly, the suit land has already been registered in the joint names of the Appellant, the first Respondent and John Brian Muinami Maina since 13-4-2023 in execution of the judgment dated 7-12-2022. Secondly, the application for review was made after an inordinately long period of over one(1) year and it was dismissed for lack of merit. Thirdly, the Applicant was represented by a competent firm of advocates and he cannot be heard to give an excuse for failing to lodge his appeal on time. Fourthly, the 1st Respondent has instructed her advocates to dissolve the trust so that she may realise the fruits of her judgment and since the application for review was dismissed, there is nothing to stay.
4. The Applicant filed a supplementary affidavit dated 31-1-2025 in which he adds as follows. One, the application for review was made without delay but he had constraints of health and finances. Two, the suit land is family land and the Appellant has a wife and children who too have a right to a share of the same especially because it is inherited from his parents. Execution of the decree of the lower court will occasion grave injustice to his family. Three, the finding by the trial court that there was no error apparent on the face of the record, in its decision warrants to be determined by this court. Finally, if the 1st Respondent dissolves the trust before the appeal is determined, the suit land could be alienated and the pending appeal rendered nugatory.
5. Counsel for the parties filed written submissions dated 3-2-2025 and 12-2-2025 respectively.
6. I have considered the motion in its entirety including the grounds, the affidavits, the annexures and the written submissions . Since the appeal itself is also pending before me, I will not delve deeply into this ruling. Suffice it to say that I find merit in the motion for only one reason. This is the admission by the 1st Respondent at paragraph 12 of the replying affidavit that she desires to dissolve the trust. She states as follows-“That I do confirm that I am desirous of dissolving the trust and I did instruct my advocates on record to author and serve the letter dated 19-9-2024 which letter was never elicited any response…”
7. If the trust were dissolved before the appeal is heard, the suit land could end up being sold to third parties by the 1st Respondent and this will definitely mean the appeal will be rendered nugatory.
8. For this reason alone, I find merit in the motion dated 22-10-2024 which I allow in terms of prayer 3.
9. Costs in the cause.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 21ST DAY OF JULY, 2025. M.N. GICHERUJUDGE.Delivered online in the presence of; -Court Assistant – Mwangi NjonjoAppellant’s Counsel – Miss Maina holding brief1st Respondent’s Counsel – Mr Mbue Ndegwa
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