Nyamu v Gathege (Environment and Land Appeal E005 of 2024) [2026] KEELC 4207 (KLR) (1 July 2026) (Ruling)

Nyamu v Gathege (Environment and Land Appeal E005 of 2024) [2026] KEELC 4207 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4207 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Appeal E005 of 2024 EK Makori, J July 1, 2026 Between Simon Muiru Nyamu Appellant and Samuel Maina Gathege Respondent Ruling 1.The Respondent herein filed the Notice of Motion dated November 25, 2025, seeking the following orders:a.Spent.b.That this Honorable Court may be pleased to order the eviction of the Defendant/Respondent, his family members, and particularly his daughter, Pauline Wakarindi Muiru, from two rooms within the Applicant's premises, L.R. Number Muhito/Gaturia/1186.c.That the Officer Commanding Police Station (O.C.S.) of Mukurwe-ini Police Station shall provide security to hippo merchants during the eviction exercise.d.It is respectfully requested that this Honorable Court may be pleased to issue an order to the County Land Registrar of Nyeri to cancel the caution registered against the title of the premises, L.R. Number Muhito/Gaturia/1186, as caused by the Respondent.e.That this Honourable Court may be pleased to award the costs of this application. 2.The application is supported by the affidavit of the Respondent/Applicant. It is founded on the ground that on 22nd July, 2022, the Court of Appeal found in his favor in Nyeri Appeal Number 48 of 2017, that he was a purchaser of L.R. Number Muhito/Gaturia/1186. He has attached the Decree issued on 10th November 2022. 3.The Applicant herein then submitted completion documents to the land registry, and the County Land Registrar executed the decree and had the property transferred into his name following due process. 4.However, the Appellant/Respondent herein caused the County Land Registrar to register a caution against his new title, which he believes is an unnecessary legal burden. 5.Further, the Respondent and his family have unreasonably prevented his repossessing two rooms, one of which is filled with sacksful of macadamia husks that could catch fire and spread, razing the entire premises, thereby preventing him from fully enjoying the fruits of his judgment. 6.That there were two fire incidents and threats on the night of 18th-19th March 2025, which the Appellant/Respondent did not report to Mukurwe-ini Police Station, right across the road, but the Applicant herein took it upon himself to report them. 7.It is the Applicant’s case that enforcement of the Court decision is vital to dispute resolution and ought to be effective, because judicial officers do not render judgments in vain. He prayed that his application be allowed. The Appellant’s/Respondent’s Replying Affidavit 8.The Respondent filed a replying affidavit in response to the application sworn on December 19, 2025. He contends that, before the filing of this Application, the Respondent/Applicant filed a similar application dated November 23, 2025, before the Magistrate's Court at Mukurwe-ini, which court declined to entertain it on the ground that the matter was actively pending before this Honorable Court. 9.That the Magistrates did not dismiss, strike out, or decide the said application on its merits, and that the Respondent/Applicant did not withdraw it. Thus, the said application remains pending before the Magistrate's Court at Mukurwe-ini. 10.The Respondent contends that filing parallel applications before courts of concurrent jurisdiction over the same subject matter constitutes forum shopping and an improper attempt to obtain favorable orders after being denied audience in another court. This conduct is calculated to circumvent due process and undermine the orderly administration of justice. 11.The Respondent stated that this has caused him prejudice; this exposes him to unnecessary litigation. 12.He thus opposes the instant application, arguing that this Honorable Court ought not to entertain an application that remains pending before the Magistrate's Court at Mukurwe-ini. The Applicant’s written submissions 13.Counsel for the Applicant submitted that despite the Court of Appeal in Nyeri finding, on July 22, 2022, that the Applicant was a purchaser of the subject parcel of land, L. R. Number Muhito /Gaturia/1186, and the Magistrate’s Court at Mukurwe-ini decreeing the enforcement of the Court of Appeal’s said decision in favor of the Applicant, with delivery of vacant possession of two rooms within the premises, the Appellant/Respondent herein’s daughter remains in actual possession of the suit property. 14.In response to the Respondent’s arguments, they submit that the Court of Appeal does not enforce decrees and that the argument that the application contending that the Mukurwe-ini Magistrate’s Court application is still pending is a non-issue, since the said Court directed that it lacked jurisdiction. 15.It is the Applicant’s submission that this Honorable Court cannot sit in appeal from the Court of Appeal’s decision finding that the Applicant was a purchaser of the subject parcel. 16.Further, that the Appellant’s encumbrance is superfluous since it lacks legal and/or factual bases, siince it reads that it is due to this pending appeal, contrary to court orders. 17.They submit that enforcement of court decisions is vital to dispute resolution and ought to be effective, because judicial officers do not render judgments in vain. They further submit that it is fair and just for this Honorable Court to allow the Applicant’s application dated 25 November 2025. 18.The Applicant’s prayer is that the Court of Appeal order be enforced, that is, that eviction be ordered, that Mukurweini OCS provide security to the auctioneer during the eviction exercise, and that the County Land Registry remove the caution forthwith. The Appellant/Respondent’s submissions 19.Counsel for the Appellant/Respondent relied on the reply affidavit and submitted that the hurried manner in which the applicant seeks to have the Respondent vacate the suit premises only demonstrates the mischief the Respondent is inviting this Honorable Court to cure. 20.Nothing has been presented to this Court to demonstrate urgency. The applicant has not shown why he has suddenly acquired the need to occupy and use the suit premises. 21.The Respondent referred to their earlier application for a stay of execution, submitting that the reason or ground for granting the earlier prayer for a stay of execution is now clearly manifest through the instant application. For that reason alone, we submit that the current applicant should not be granted the prayers sought in this application, as doing so would not be in the best interests of justice. 22.They contend that the applicant has presented nothing to this Court to demonstrate that there was indeed a fire or that any purported fire outbreak was caused by the Respondent or by negligence attributable to the Respondent. 23.Secondly, they submit that this matter is sub judice, citing Section 6 of the Civil Procedure Act, Chapter 21, Laws of Kenya, which is categorical in prohibiting courts from proceeding with the trial of any suit where the matter in issue is already pending before another court of competent jurisdiction. 24.They also submit that the other issue this Court ought to consider is whether this Court, while sitting in its appellate capacity, can enforce a Trial Court decree. 25.Their submission is that the applicant is attempting to pre-empt and, hopefully, circumvent the law, and they prayed that the instant application be dismissed with costs. Analysis and determination 26.This suit is an appeal from the Judgment delivered by the trial court in Mukurweini MC ELC E016 OF 2022 on January 16, 2024, dismissing the Appellant’s Counterclaim and allowing the Respondent’s suit with costs. The Appellant/Applicant herein had earlier filed an application dated December 5, 2024, for a stay of execution of this Decree, which this Court declined to grant because the Decree had already been executed, as the title is now registered in the Applicant/Respondent’s name, as ordered by the Trial Court. 27.It has been further revealed by this instant application that there is yet another order dated 22nd July 2022, by the Court of Appeal, in Civil Appeal Number 48 of 2017, between the Appellant herein and one Teresa Caroline Wanjiru, whose identity the Applicant has not revealed. The order states that the Appellant is the Appellant's husband. The Court of Appeal ordered that the Appeal is allowed. I note that this said appeal is not part of the subject suits herein. 28.The Judgment and Decree that are the subject of this appeal, issued by the Magistrate’s Court at Mukurweini (MC ELC E016 OF 2022) on January 16, 2024, read as follows:(a)An order that the decision in Civil Appeal No.48 of 2017 in Nyeri be enforced.(b)An order that the Plaintiff has acquired Muhito/Gaturia/1186 by way of adverse possession and should have been registered as proprietor.(c)The Defendant to deliver vacant possession, failing which eviction to issue.(d)The County Land Registrar to remove restrictions, inhibitions or cautions registered on the suit property.(e)The Defendant to cause registration of the Plaintiff as proprietor of the suit property, execute all relevant documents and consent, failing which the Court administrator to execute the documents.(f)The Plaintiff shall have costs of this suit. 29.The Applicant herein has revealed that the suit property is now registered in his name as ordered and now seeks the eviction of the Appellant/Respondent herein and an order that the County Land Registrar, Nyeri, remove the caution which the Respondent had caused to be registered against the title in execution of this Court order. 30.Noting that there are no orders staying execution of the Decree of the Chief Magistrate’s Court, I am of the view that nothing prevents the Respondent/Applicant herein from proceeding with execution. 31.Section 30 of the Civil Procedure Act CAP 21 provides that:“A decree may be executed either by the court which passed it or by the court to which it is sent for execution.” 32.Further, section 34 of the same Act provides that:“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.” 33.Therefore, in the absence of any stay orders, the issue is now fully addressed and moot, and it is my opinion that the Chief Magistrate’s Court is the Court mandated to execute the Decree it passed. However, the Applicant has informed the Court that it is the Chief Magistrate’s Court that sent them to this Court for the present application to be heard, since there is a pending appeal. 34.In refusing to vacate the suit premises, the Appellant/Respondent herein is essentially in contempt of an active Court Order. As to the Respondent’s argument that the orders sought herein demonstrate the need for a stay, which this Court denied, it has been established that execution underway is not a sufficient reason to grant a stay. As held in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), the process of execution underway does not necessarily amount to substantial loss, and the Court stated:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal.” 35.Similarly, in the words of Platt JA in the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR):“An intended appeal does not automatically operate as a stay.” 36.Therefore, the Applicant herein is entitled to execute the orders of the Chief Magistrate’s Court at Mukurweini; however, this Court cannot, in law, execute a lower court’s orders/decree. 37.The applicant herein is to move the executing court for the necessary orders of eviction. 38.No order as to costs. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NYERI ON THIS 1ST DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Mr. Ombongi for the AppellantMr. Muthoni for the RespondentDenis - Court Assistant