https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3771

Thuo v Ngugi & 4 others (Environment and Land Case 137 of 2017) [2026] KEELC 3771 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEELC 3771 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case 137 of 2017 JA Mogeni, J June 15, 2026 Between Mary Huro Thuo Plaintiff and Caroline Gathoni Ngugi 1st Defendant Victor Nicholas Ngugi 2nd Defendant Robert Mwaura Ngugi 3rd Defendant Samuel Joseph Wanyoike 4th Defendant Mary Wanja Gituga 5th Defendant Ruling 1.The application before this Court is a Motion seeking a stay of execution of the Judgment and Decree delivered on 29/04/2025, pending the hearing and determination of an intended Appeal. The core conflict involves the cancellation of titles to land parcel Githunguri/Kiaria/1490 and its reversion to the estate of a deceased matriarch, Emily Wamaitha Mwaura. 2.This Application is brought by the Applicants under Section 3A, Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law seeking the following prayers:a.Spent.b.Spentc.That there be a stay of execution of the Judgment delivered on 29/04/2025 and Orders/Decree made thereunder and all consequent orders pending the hearing and determination of the appeal filed against the said Judgment, Order and/or Decree.d.That this Honourable Court do make any such further and/or other orders and issue any other relief it may deem just to grant in the interests of justice.e.That costs of this application be in the cause. 3.The application is primarily based on the dissatisfaction of the 1st, 2nd, 3rd and 4th Defendants with the Judgment rendered by Hon. Lady Justice J.G. Kemei on 29/04/2025. The core grounds include:i.The Judgment orders the cancellation of titles for suit property Githunguri/Kiaria/1490. There is a high risk that the land will be subdivided or sold to third parties if reverted to the estate of Emily Wamaitha (Deceased), rendering the appeal academic.ii.The Applicants face a risk of being compelled to refund purchase prices to the current registered proprietor's estate - funds that would likely be permanently lost even if the appeal eventually succeeds.iii.A stay of execution would preserve the suit property, ensuring it remains available for the performance of the final decree without causing prejudice to the Respondent.iv.A Notice of Appeal has already been filed, and proceedings have been requested. Since the decree is already extracted, the Land Registrar could execute the cancellations at any time, necessitating urgent Court intervention. 4.The grounds are supported by the Affidavit sworn by Samuel Joseph Wanyoike, on even date the 4th Defendant, who also represents the interests of the 1st, 2nd and 3rd Applicants. 5.He confirms that following the Judgment, the Applicants have formally signaled their intent to appeal by filing a Notice of Appeal on May 8, 2025, which is attached as Annexure ‘SJW1’. To facilitate the preparation of the Record of Appeal, they have also formally requested the typed proceedings from the Court, evidenced by Annexure “SJW2”. 6.Wanyoike deposes that the Judgment’s order to cancel the transfer from the late Emily Wamaitha to Martha Wanjiru Ngugi (and subsequent transfers) puts the Applicants in a position of extreme vulnerability. He highlights the complexity of the current ownership, noting that the 5th Defendant was compelled to become an administrator of the proprietor's estate without the participation of the actual beneficiaries, a fact supported by the application dated 15/11/2021, attached as Annexure “SJW3”. 7.The deponent emphasizes that since the decree has already been extracted, there is nothing preventing the Land Registrar from effecting the cancellations immediately. He concludes by stating that a stay of execution is the only way to preserve the suit property for due performance of the eventual decree and that the application is brought in good faith to prevent the appeal from being rendered a formality. 8.The Application is opposed. The Plaintiff/Respondent, Mary Huro Thuo, in her Replying Affidavit sworn on 2/07/2025 and Further Affidavit sworn on 25/10/2025 vehemently opposes the Applicants' prayer for a stay of execution, characterizing the application as a dilatory tactic and an afterthought designed to obstruct the course of justice. 9.She deposes that upon the delivery of the Judgment on 29/04/2025, the Applicants’ Counsel was present in Court yet notably failed to seek an oral stay of execution, which she asserts is clear evidence that no substantial loss was anticipated at that time. She further contends that the Applicants have failed to demonstrate the requisite sufficient cause or satisfy the legal threshold for stay of execution, particularly the proof of irreparable harm. On the contrary, she maintains that the Applicants, as grandchildren of the deceased Emily Wamaitha, actually stand to benefit from the Judgment as legitimate beneficiaries who will now have access to their family land and the ancestral gravesite located thereon. 10.The Respondent further clarifies the status of the suit property by noting that the third-party purchaser has since passed away, and his legal representatives have shown a total lack of interest in the proceedings despite being served, thereby neutralizing any claim of potential loss to the estate of the purchaser. She highlights the historical injustice perpetrated by the 1st to 4th Defendants/Applicants, who she claims selfishly dispossessed other heirs and sold the family property for Kshs 3,000,000.00 through material non-disclosure. She asserts that the Applicants solely pocketed these proceeds while rendering other legitimate family members homeless since the destruction of the family home that had existed on the property since 1958. Consequently, she argues that any demand for a refund of the purchase price is a liability the Applicants must bear personally due to their own wrongful actions. 11.In her Further Affidavit, the Respondent raises a fundamental jurisdictional point, deposing that the application for stay has been completely overtaken by events and is now legally moot. She provides documentary evidence through Annexure “MHT1” a copy of the Green Card and Annexure “MHT2” an Official Search to demonstrate that the orders of the Court have already been fully executed. Specifically, she points to Entry Number 12 on the Green Card, dated 22/08/2025, which confirms that the title has already reverted to the name of her mother, Emily Wamaitha Mwaura. She concludes that because the reversal of ownership is an accomplished fact, a stay of execution cannot issue over a process that is already complete, and she therefore prays for the dismissal of the application with costs. 12.The parties canvassed the application by way of written submissions. The Defendants/Applicants filed their submissions dated 18/13/2025 and the Plaintiff/Respondent filed theirs dated 6/02/2026. I have considered and summarized both submissions herebelow. Submissions 13.The 1st to 4th Defendants/Applicants, through their written submissions, implore this Honourable Court to grant a stay of execution pending the hearing and determination of their appeal, asserting that they have met the tripartite threshold established under Order 42 Rule 6(2) of the Civil Procedure Rules. They aver that they shall suffer substantial and irreparable loss if a stay is not granted, specifically arguing that the Plaintiff/Respondent’s intent to distribute the suit property, Githunguri/Kiaria/1490, will lead to subdivisions or alienations to third parties, thereby destroying the substratum of the appeal and rendering it nugatory. 14.The Applicants further contend that the permanent injunction issued against them in the impugned Judgment deprives them of their ancestral right of access, causing grave prejudice. Regarding the requirement of security for due performance, they submit that the preservation of the suit property itself serves as sufficient security. On the question of timelines, they maintain that filing the application within three weeks of the Judgment constitutes prompt action without unreasonable delay. They emphasize the Court's inherent power to achieve the overriding objective of justice and prevent a situation where a successful appeal would be a hollow victory. 15.Conversely, the Plaintiff/Respondent vigorously opposes the application, primarily arguing that it has been overtaken by events because the decree was executed on August 22, 2025, when the Land Registrar rectified the register to revert ownership to Emily Wamaitha Mwaura. Relying on the celebrated case of Western College of Arts & Applied Sciences v Oranga & Others (1976) KLR 63, the Respondent submits that the Court cannot stay a negative order or one that has already been substantially executed, as doing so would be an exercise in futility. She further asserts that the Applicants have failed to demonstrate substantial loss with evidentiary proof, citing Kenya Shell Ltd v Kibiru & Another (1986) KLR 410 and Butt v Rent Restriction Tribunal (1982) KLR 417 to support the principle that mere apprehension or speculative fears of subdivision are insufficient to warrant a stay. The Respondent also relies on Samvir Trustee Limited v Guardian Bank Limited (2007) eKLR and Machira t/a Machira & Co Advocates v East African Standard (No 2) [2002] eKLR to argue that loss must be real and demonstrable. Finally, she points out that the Applicants have failed to offer mandatory security for the due performance of the decree as required in Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another [2018] eKLR, and concludes that the Applicants, as grandchildren, suffer no loss since the land remains within the family estate for the benefit of all lawful heirs. Analysis and Determination 16.Having considered the pleadings filed, the Affidavits and the written submissions, the resolution of this application hinges on three pivotal legal questions which are:i.Whether a stay of execution can issue where the Land Registrar has already rectified the register (as evidenced by Entry No. 12 on the Green Card dated 22/08/2025).ii.Whether the Applicants have moved beyond mere apprehension to demonstrate demonstrable loss under Order 42 Rule 6(2).iii.Whether the refusal to grant a stay would render the intended appeal a mere academic exercise. 17.The Respondent argues that because ownership has already reverted, the Court is being asked to lock a gate that is already open. In the celebrated case of Western College of Arts and Applied Sciences vs. Oranga [1976] KLR 63, the Court of Appeal famously stated:“But what is there to be stayed? A stay can only be granted where there is something to be stayed ... If the order of the High Court has been implemented, it cannot be stayed." 18.On the nature of substantial loss which is the cornerstone of stay applications the Court in the case of Kenya Shell Limited vs. Kibiru [1986] KLR 410, Gachuhi, J.A. held:“Substantial loss is the cornerstone of both jurisdictions for granting a stay ... It is not sufficient to merely state that the Applicant will suffer substantial loss. 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’s appeal." 19.The above referenced case is frequently cited regarding the twin principles for granting a stay of execution which are; demonstrating an arguable appeal and showing that substantial loss will occur if stay is refused. 20.Similarly, in Butt vs. Rent Restriction Tribunal [1982] KLR 417, the Court emphasized that:“The Court in exercising its discretion to grant a stay of execution may consider whether the appeal is frivolous or not, but the main point is whether the Applicant would suffer substantial loss." 21.On the nugatory aspect decisions from both the High Court and Environment and Land Court (ELC) often look to the standard set in Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR, where the Court of Appeal summarized the principle:“The term 'nugatory' has to be given its full meaning. It does not only mean 'useless', 'worthless' or 'futile'. It connotes even more... that the substratum of the appeal would be gone." 22.This Court of Appeal decision is a landmark decision that solidified the principles for granting a stay of execution pending appeal. It holds that to obtain a stay, an Applicant must demonstrate an arguable appeal and show that, without the stay, the appeal would be rendered nugatory. 23.The jurisprudence of stay of execution is a balancing act between two competing rights: the right of a successful litigant to enjoy the fruits of their Judgment and the right of the losing party to have their appeal heard before the status quo is irrevocably altered. 24.Black’s Law Dictionary defines a stay of execution as;“The stopping or arresting of a judicial proceeding by order of a Court." 25.Historically, the power to stay is discretionary but "must be exercised judicially and not at the caprice of the Court" (Halsbury’s Laws of England, 4th Edition). 26.As noted in Mulla on the Code of Civil Procedure, the philosophy behind Order 42 Rule 6 is not to punish the winner, but to ensure that the subject matter of the litigation is preserved. Emerging jurisprudence in Kenya post-2010 Constitution emphasizes the Overriding Objective of propriety and fairness. This requires the Court to avoid Judicial Futility. 27.If a title has already been cancelled and registered in a new name as indicated by the Respondent’s Annexure “MHT1”, the Court faces a jurisdictional barrier. Modern jurisprudence suggests that a stay is a prohibitory remedy, not a restorative one. Once an act is done, the remedy lies in an application for an injunction pending Appeal or Restoration of the Status Quo Ante, rather than a simple stay of execution. Disposal Orders 28.Having considered the rival submissions and the evidentiary exhibits notably the Green Card and official search showing reversal of title on 22/08/2025 this Court finds that the application is legally spent regarding the act of title cancellation. One cannot stay a past event. Furthermore, since the Applicants are family members, the substantial loss is mitigated by their inherent interest in the estate. 29.Accordingly, I do hereby order as follows:i.The Application for Stay of Execution dated 19/05/2025, is hereby dismissed on the grounds that it has been overtaken by events and the Applicants have failed to demonstrate substantial loss as required by law.ii.The Status Quo Order granted on 7/10/2025, is hereby vacated, as it was issued post-facto to the registration of the title reversal.iii.The parties are directed to proceed with the hearing of the Appeal in the Court of Appeal; the substratum remains protected as the land is now registered in the name of the Deceased for the benefit of all lawful heirs.iv.Costs to be borne by each party.v.File Closed. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 15TH DAY OF JUNE, 2026.………………………MOGENI JJUDGEIn the presence of:Ms. Wngoi holding brief for Mr. Ndegwa for the PlaintiffMr. S. N. Ng’ang’a for the 1st, 2nd, 3rd and 4th Defendants5th Defendant - AbsentMr. Melita - Court Assistant………………………MOGENI JJUDGE