https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3088

Nyanjui & another v Nyanjui (Land Case Appeal E009 of 2025) [2026] KEELC 3088 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3088 (KLR) Republic of Kenya In the Environment and Land Court at Thika Land Case Appeal E009 of 2025 JA Mogeni, J May 21, 2026 Between John Nduati Nyanjui 1st Appellant Ngugi Nyanjui 2nd Appellant and Margaret Njeri Nyanjui Respondent Ruling 1.The Application before this Court is the Notice of Motion dated 11/03/2025 brought under the provisions of Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, as well as Section 3A of the Civil Procedure Act and all other enabling provisions of the law. 2.The Application, which is supported by the Affidavit of James Wanganga Wanini, seeks the following principal orders:i.Spent.ii.That a stay of execution in Kikuyu Law Courts MCELC NO. E044 OF 2023 be granted pending the hearing and determination of this application.iii.That the Court be pleased to grant a stay of execution in Kikuyu Law Courts MCELC NO. E044 OF 2023 pending the hearing and determination of the Appeal filed at the Environment and Land Court at Thika against the Judgment delivered by the Hon. C. Mburu on the 22nd of January 2025.iv.That the costs of this application be provided for.v.Any other orders that meet the ends of justice. 3.The Application is supported by the grounds set out in the Notice of Motion and the annexed Affidavit of James Wanganga Wanini, which are summarized as follows:a.That the trial Court, presided over by Hon. C. Mburu, SPM, delivered a Judgment awarding the Respondent proprietary rights over the suit property known as Kabete/Nyathuna/3126.b.That unless a stay of execution is granted, the Appellants stand to suffer substantial loss as a result of the Judgment; specifically, should the Decree be executed in favor of the Respondent, the suit property may become irrecoverable.c.That the pending Appeal has a reasonable chance of success, and should the execution proceed, it would render the intended Appeal nugatory by altering the status of the subject matter before the Appeal is determined.d.That the Applicants have moved the Court without delay, asserting that there has been no delay in bringing the application for stay.e.That the Plaintiff is likely to move to execute the Decree and the Judgment at any time, necessitating the urgent intervention of this Court. 4.The Application is opposed by the Replying Affidavit sworn by Fridah Njoki Wanjira, Advocate for the Respondent/Claimant, dated 12/05/ 2025, and she avers that the application is frivolous and vexatious abuse of the Court process designed to obstruct the Respondent from enjoying the fruits of her Judgment. 5.The Deponent deposes that the suit property is legally registered in the name of the Respondent, who is the step-mother of the Applicants, and asserts that the Applicants have unlawfully infringed upon her proprietary rights by placing restrictions on the title and forcibly ejecting her from her matrimonial home. It is further deponed that the Respondent has been rendered a displaced person, seeking shelter from well-wishers, and that the instant application is a pre-emptive strike triggered by the Applicants' discovery of the Respondent's intention to re-occupy her property following the lower Court's Decree. 6.In addressing the legal threshold for stay of execution, the Deponent submits that the Applicants have failed to demonstrate any substantial loss that would befall them should the stay be declined, which is a mandatory prerequisite under the law. Conversely, the Deponent invites the Court to consider the balance of convenience, noting that the Respondent an elderly woman in frail health and under financial distress stands to suffer irreparable prejudice if she is barred from her home during the pendency of the Appeal. 7.At the same time, the Affidavit raises the issue of laches, pointing out that while the Memorandum of Appeal was lodged on 30/01/2025, this application was not filed until March 2025, constituting an unreasonable and unexplained delay that should serve as a bar to the discretionary relief sought. 8.In closing, the Deponent concludes by highlighting that the Applicants have failed to offer any security for the due performance of the Decree as required by the Civil Procedure Rules. In a bid for equitable intervention, the Deponent suggests that should the Court be inclined to grant a stay, the Applicants ought to be ordered to pay a monthly sum of Kshs 25,000/= to cater for the Respondent’s alternative rental accommodation as security. 9.Ultimately, the Advocate maintains that the Respondent has not taken any detrimental action against the suit property and prays that the application be dismissed with costs to ensure the ends of justice are met. While no specific documentary annexures were explicitly detailed in the body of the provided text, the affidavit relies on the record of the Court regarding the registration of the suit property and the timelines of the filed Memorandum of Appeal. 10.In response to the Replying Affidavit, the Applicant/Appellants filed a Supplementary Affidavit sworn on 26/08/2025. The Supplementary Affidavit sworn by James Wang'ang'a Wanini, Advocate for the 1st and 2nd Applicants/Appellants, serves as a rejoinder to the Respondent's opposition and reinforces the prayer for a stay of execution. The Deponent deposes that the application for stay was moved within the legally stipulated timelines and in strict adherence to the principles of natural justice, contending that the issues raised therein are central to the preservation of the suit property, which the Applicants currently occupy. 11.He further deposes that the Applicants have raised substantial and triable questions of law regarding the procedural propriety of the acquisition and registration of the suit property in the Respondent's name, asserting that the existing restriction on the title is a lawful mechanism intended to safeguard the proprietary interests of the Applicants and to prevent the intermeddling of the estate of their deceased father, Arthur Nyanjui Dishon, pending the petition for Letters of Administration. 12.Regarding the allegations of harassment, the Deponent refutes the Respondent’s claims, stating that the Applicants are persons of high standing in the community who have historically maintained a peaceful and loyal relationship with their step-mother, further asserting that the Respondent vacated the suit property of her own volition without any interference or reported incidents of hostility. Addressing the perceived delay in filing the application, the Deponent attributes the timeline to the administrative bureaucracy involved in obtaining certified copies of the Judgment and proceedings from the trial Court, alongside the logistical process of receiving instructions. 13.In response to the Respondent’s demand for security, the Deponent maintains that the issue of paying rent is devoid of merit given the Respondent's voluntary departure from the premises. He reiterates the Applicants' willingness to accommodate the Respondent in the family home, thereby negating the need for financial security. Ultimately, the Deponent invokes the Court’s jurisdiction under Article 50 of the Constitution of Kenya 2010, urging the Court to uphold the Applicants' right to be heard and to grant the stay of execution to prevent the Appeal from being rendered nugatory and to forestall irreparable loss. While the text refers to the Notice of Appeal and the lower Court record, no specific external annexures were physically attached to the supplementary affidavit. 14.The parties were directed to filed written submissions which they did. The Applicant/Appellant filed their submissions dated 20/08/2025 and the Respondent filed theirs dated 19/08/2025. I will summarize herebelow the submissions. Applicants/Appellants’ submissions 15.The 1st and 2nd Applicants/Appellants move the Court to grant a stay of execution of the Judgment delivered on 22/01/2025 by the Kikuyu Law Courts in MCELC No. E044 of 2023, asserting that they have an arguable Appeal with a high probability of success. It is submitted that the Court should exercise its discretionary power under Order 42 Rule 6 of the Civil Procedure Rules to preserve the subject matter of the dispute, thereby ensuring that the Appeal is not rendered a mere academic exercise or nugatory. The Applicants rely on the holding in RWW vs. EKW (2019) eKLR, which emphasizes that the primary purpose of a stay is to balance the interests of the parties by ensuring that an Appellant’s right of Appeal is not stifled while protecting the successful litigant's interest. They further contend that to act judiciously, as defined in COI & Another vs. Chief Magistrate Ukunda Law Courts & Others (2018) eKLR, the Court must apply its mind to the specific facts and law to reach a reasoned determination. 16.The Applicants maintain that they have satisfied the three-pronged test established in Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nairobi 15 of 1990, which requires the establishment of sufficient cause, proof of substantial loss, and the furnishing of security. On the issue of substantial loss, they argue that since they have occupied and lived on the suit property since birth, their eviction would create an irreparable state of affairs that negates the very core of their Appeal, as established in James Wangalwa & Another vs. Agnes Naliaka Cheseto (2012) eKLR. Regarding the timeline of the application, it is submitted that the Notice of Appeal was lodged on 31/01/2025, demonstrating that the Applicants have moved the Court without unreasonable delay and in compliance with statutory timelines. 17.Finally, the Applicants invoke the principles of natural justice and Article 50 of the Constitution, arguing that no litigant should be driven from the seat of justice without a fair hearing, regardless of the perceived strength of their case. Citing Onyango vs. Attorney General, they submit that a breach of natural justice cannot be cured by the correctness of a decision. On the matter of costs, the Applicants rely on Section 27 of the Civil Procedure Act and the precedent in Republic vs. Rosemary Wairimu Munene Ex parte Ihururu Dairy Farmers Co-operative Society Limited (2014), asserting that costs should follow the event. Consequently, they pray that the application be allowed in its entirety to prevent irreparable prejudice and that the costs of the application be awarded to the 1st and 2nd Applicants/Appellants. 18.The Respondent filed their submissions two days after the Applicants filed theirs. The Respondent submits that the Applicants’ Motion is a frivolous and vexatious attempt to obstruct her from enjoying the fruits of a lawfully obtained Judgment. It is argued that the suit property is registered in the Respondent's name and that the Applicants have not only infringed upon her proprietary rights but have rendered her homeless, forcing her to incur monthly rental expenses of Kshs 25,000/=. Relying on the principle established in Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589, the Respondent contends that a successful party is prima facie entitled to the fruits of their Judgment. Furthermore, the Respondent asserts that the Applicants have failed to provide empirical or documentary evidence of substantial loss, which Kenya Shell Limited vs. Kibiru [1986] KLR 410 identifies as the cornerstone for granting a stay. The mere apprehension that the Respondent will lift land restrictions is dismissed as an insufficient ground, as she would merely be enforcing a valid Court Decree. 19.On the issue of procedural compliance, the Respondent points out a significant and unexplained delay of two months between the lodging of the Appeal in January and the filing of the instant application in March 2025. Citing Machira T/A Machira & Co Advocates vs. East African Standard (No. 2) [2002] KLR 63, the Respondent urges the Court to exercise its discretion judiciously and avoid crocodile tears for an Appellant while disregarding the rights of the successful litigant. It is submitted that the Applicants' failure to move the Court with requisite speed constitutes an unreasonable delay that militates against the grant of the discretionary orders sought. 20.Finally, the Respondent emphasizes that the Applicants have failed to furnish any security for the due performance of the Decree as mandated by Order 42 Rule 6(2)(b). Referencing Mwaura Karuga T/A Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR and Michael Ntouthi Mutheu vs. Abraham Kivondo Musau [2021], the Respondent argues that security is a vital yardstick to ensure that the ultimate Decree, including costs and interest, is satisfied if the Appeal fails. In the absence of such security or a showing of merit, and citing Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd [2019] eKLR, the Respondent maintains that the application is a misuse of the judicial process and prays for its dismissal with costs. Analysis and Determination 21.The Application dated 11/03/2025 falls for determination on the primary question of whether the Applicants have satisfied the rigorous threshold for the grant of a stay of execution pending Appeal. From the pleadings, affidavits, and rival submissions, the following key issues emerge for resolution:a.Whether the Applicants have demonstrated that they will suffer substantial loss unless the stay is granted;b.Whether the application has been brought without unreasonable delay;c.Whether the Applicants have offered or provided sufficient security for the due performance of the Decree; andd.Whether the Appeal would be rendered nugatory if the stay is declined. 22.In addressing these issues, it is imperative to observe that the power to grant a stay is discretionary but fettered by the mandatory conditions set out under Order 42 Rule 6(2) of the Civil Procedure Rules. As the Court of Appeal held in Kenya Shell Limited vs. Kibiru [1986] KLR 410, the absence of evidence on these fronts is fatal to such a plea, where the Court noted:“It is usually a good rule to see if Order XLI Rule 4 (now Order 42 Rule 6) 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. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented." 23.On the first issue of substantial loss, the Applicants contend that their long-term occupation of the suit property, Kabete/Nyathuna/3126, implies that an eviction would cause irreparable damage. However, the Respondent countered this by noting her own displacement and the Applicants' failure to provide empirical evidence of loss. The law is settled that mere assertions of loss do not suffice. In Suleiman vs. Amboseli Resort Limited [supra], the Court emphasized the necessity of a balanced approach, stating:“The yardstick is for the Court to balance or weigh the scales of justice by ensuring that an Appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his Judgement. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to the fruits of his Judgement." 24.Regarding the issue of delay, the Court notes the gap between the Judgment in January and the application in March. Laches is a significant bar to discretionary relief. In Machira T/A Machira & Co Advocates vs. East African Standard (No. 2) [2002] KLR 63, the Court of Appeal cautioned against partiality toward Appellants, stating:“To be obsessed with the protection of an Appellant or intending Appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion." 25.A critical point of concern in the Applicants' submissions is the reliance on COI & Another vs. Chief Magistrate Ukunda Law Courts & Others [2018] eKLR. The Applicants cited this case to define the term judiciously, yet a scrutiny of the jurisprudence reveals that this matter primarily concerned the rights of LGBTQ persons and the Constitutionality of forced anal examinations. To cite such a case as an authority for the standards of stay of execution in a land dispute is not only legally sloppy but constitutes a gross misrepresentation of judicial precedent. It is the duty of Counsel to assist the Court by citing relevant authorities; placing reliance on a case involving fundamental rights and criminal procedure to justify an environmental and land Court stay application is an exercise in futility. 26.I hope that this was just a human error which did not involve Artificial Intelligence (herein AI). In case it is related to AI then it serves as a stark cautionary tale against the uncritical use of Artificial Intelligence in legal drafting. By citing a case fundamentally centered on the Constitutional rights of LGBTQ persons and forced medical examinations to support a stay of execution in an environmental matter, the Applicants have inadvertently signaled a total abdication of human legal oversight in favor of automated, context-blind writing. Where AI simply hallucinates and generates non-existent cases or irrelevant authorities. There is all the good in AI but it must be keenly supervised. This profound mismatch of jurisprudence not only undermines the credibility of the application but reinforces the standing judicial warning that advocates must personally verify their authorities to ensure they are relevant, accurate, and substantively sound. 27.Furthermore, on the issue of security for due performance, the Applicants’ refusal to offer any security, claiming the Respondent moved out voluntarily, flies in the face of Order 42 Rule 6(2)(b). In Mwaura Karuga T/A Limit Enterprises vs. Kenya Bus Services Ltd & 4 Others [2015] eKLR, the Court held:“... the security must be one which shall achieve due performance of the Decree which might ultimately be binding on the Applicant ... the ultimate Decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the Judgment sum." 28.Consequently, while this Court acknowledges its inherent powers under Section 3A of the Civil Procedure Act to prevent the abuse of the Court process, such powers cannot be used to bypass the clear statutory requirements of the Civil Procedure Rules. The Applicants have failed to demonstrate substantial loss through empirical evidence, have not provided security for the performance of a Decree that involves a party currently paying rent of Kshs 25,000/=, and have relied on irrelevant case law. 29.The Respondent, as an elderly litigant, is entitled to the fruits of her Judgment. In Gianfranco Manenthi & Another vs. Africa Merchant Assurance Company Ltd [supra], it was observed:“The winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his Judgment in case the Appeal fails." 30.This Court finds that the balance of convenience tilts heavily in favor of the Respondent. The Application dated 11/03/2025 is hereby found to be without merit and is dismissed with costs to the Respondent. 31.Mention on 28/07/2026 for disposal of the Appeal. Appellants are directed to file their Record of Appeal within 30 days of this Ruling and serve the Respondent. 32.It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 21ST DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Simiyu holding brief for Mr. Wang’ang’a for the 1st and 2nd AppellantsMiss Wanjera for the RespondentMr. Melita - Court Assistant………………………MOGENI JJUDGE