https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3008

Njeru v Kuria & 16 others (Environment and Land Miscellaneous Case E005 of 2024) [2026] KEELC 3008 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 3008 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Miscellaneous Case E005 of 2024 EK Makori, J May 13, 2026 Between Zaweria Wangui Njeru Applicant and Peter Kuria & 16 others & 16 others Respondent Ruling 1.The applicant herein filed an application by way of Chamber Summons dated 25th August 2025 seeking the following orders:a.Spent.b.The firm of Karanja Maina & Co. Advocates be granted leave to appear on record for the Applicants.c.Upon the grant of prayer 2 above, this Court orders that the notice of appeal herein is properly filed.d.Spent.e.The Court be pleased to grant a stay of execution of the ruling delivered herein on July 31, 2025, pending the hearing and determination of this appeal.f.costs be in the cause. 2.Caroline Wawira, the 15th respondent/applicant herein, swore the affidavit in support of the application herein on her own behalf and on behalf of the other applicants. She deposed that they face the risk of imminent eviction after August 31, 2025, under the July 31, 2025, ruling, which suspended the eviction orders for only 30 days. 3.They have since filed a Notice of Appeal, indicating their intention to appeal to the Court of Appeal, which is within their rights. 4.She deposed that the appeal would be rendered nugatory if orders of stay are not granted, stating that they have an arguable appeal with a high chance of success as per the annexed Memorandum of Appeal. 5.Noting that this application has been brought 12 days after the ruling was delivered, she deposed that it has not been brought under delay. 6.The deponent also argues that the respondent will not suffer any prejudice and that it is in the interest of justice that the application herein is allowed. The Respondent’s Replying Affidavit. 7.The respondent swore an affidavit in response to the instant application on September 4, 2025. She deposed that, following the delivery of the ruling in this matter on July 31, 2025, the respondents/applicants ought to have applied for leave to change their advocate before instituting the present application. In the absence of such leave or consent between the former and current advocates for the respondents/applicants, the firm of Messrs. Karanja Maina & Co. Advocates has no legal standing to move this Court on the respondents/applicants' behalf. 8.She opposes the instant application for being aimed at forestalling the execution of the order of this Court and denying her the benefits of her favorable ruling. 9.Further, she contends that respondents/applicants have not demonstrated the likelihood of any substantial loss to be suffered if execution of the order is not stayed, stating that they are trespassers with no legal claim or protectable rights over the suit land. 10.According to the applicant/respondent, she states that she is likely to suffer great prejudice and injustice if the requested stay orders are granted, because the respondents/applicants have denied her, and will continue to deny her, enjoyment of the suit parcel of land, despite her being legally and rightfully entitled thereto. 11.Additionally, the respondents/applicants have not demonstrated any readiness or willingness to post security for the performance of the order they intend to appeal from. 12.She argues that the respondent’s/applicant’s appeal is unlikely to be rendered nugatory by the execution of the Order dated 31st July 2025, because the order issued by this Court only directs them to vacate the suit land. It does not in any way threaten the foundation of their appeal. She further states that they lack an arguable appeal with a chance of success and notes that they have raised new grounds of ownership and fraud, which were not the subject of the main application. The respondent prays that the instant application be dismissed with costs. Applicants’ Written Submissions 13.Counsel for the applicants submitted that the firm of Messrs Muhoho Gichimu & Co. Advocates represented the applicants at the time of instituting this matter. When the ruling herein was issued, they appointed the firm of Messrs Karanja Maina & Co. Advocates to represent them post-ruling and on appeal; thus, they seek leave to come on record for the appellant. 14.The firm of Muhoho Gichimu & Co. Advocates was duly served on 28th August 2025 with the instant application and a Notice of Change of Advocates dated 2nd August 2025, via their last known email address, to which they neither responded nor objected. 15.Regarding the Notice of Appeal dated 2nd August 2025, it is submitted that it was filed on time as required under Rule 75(1) of the Court of Appeal Rules, 2010, which was well within the 14 days by law. They relied on the holding of the Supreme Court in University of Eldoret and another vs. Hosea Sitienei and three others [2020] eKLR 16.Regarding the prayer for stay, Counsel relied on Order 42 Rule 6 (2) of the Civil Procedure Rules, noting that the Applicants filed the application herein 12 days after the Ruling was delivered, thus it was not brought under delay. The holding in Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365 was relied upon. 17.On the element of substantial loss, Counsel relied on the holding in the case of James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eKLR, and submitted that the Applicants stand to suffer substantial loss as the Respondent shall proceed to execute the decree, leaving them and their family destitute, which shall render the appeal nugatory and a mere academic exercise. 18.It is their submission that the intended appeal raises arguable grounds with a reasonable chance of success and relied on Hasan & Another versus Makacy & 2 Others (Sued as the Chairman, Secretary, and Treasurer Respectively of East Sidaz Self Help Youth Group) (Environment and Land Appeal E224 of 2024) (2025) KEELC 3821 19.They relied on Arun C. Sharma vs Ashana Raikundalia, Tea Raikundalia & Co. Advocates & 2 Others (2024) eKLR on the issue of security for costs, stating that the Applicants are ready to abide by any conditions that the Court orders, which shows their willingness to furnish security. They prayed that the Court allow the instant application. The Respondent’s Written Submissions 20.Counsel for the Respondent submits that the Notice of Appeal dated 2nd August 2025 was filed by the firm of Karanja Maina & Company Advocates on the Applicant’s behalf on 13th August 2025, which was before said firm of advocates sought to comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, about the change of advocates post-judgment. 21.They relied on the holding in Olomoya Kintet & Another v Kayit Ole Kunguru & 2 others [2025] KEELC 8233 (KLR), where the Environment and Land Court observed that Order 9 Rule 9 is couched in mandatory terms. That the consequence of noncompliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, as can be noted from precedent, is that the said firm had no legal standing to file the Notice of Appeal, and the same ought to be struck out. It is their submission that the procedural requirement under Order 9 Rule 9 cannot be termed as a procedural technicality, citing the decision in the case of Ruth Munda Gituro v David Meitikini Maki & 3 others [2024] KECA 1204 (KLR). 22.On stay of execution, the Respondent’s counsel submits that a stay of execution ought not to be granted, for the Applicants have failed to demonstrate any substantial loss they are likely to suffer if a stay is not granted. On this point, they relied on Intercountries Importers & Exporters Ltd v Total Security Limited & 7 Others [2023] KEELC 17449 (KLR) and Charles Wahome Gethi v Angela Wairimu Gethi [2008] KECA 34 (KLR). 23.They submit that the imminent eviction of the Applicants from Nyeri/Municipality Block 2/1326 is a lawful process that would ensure that the Respondent enjoys the fruits of her favourable Ruling as well as her rights as the registered proprietor of the parcel of land. The eviction of a trespasser is only an ordinary loss that a judgment debtor suffers, and the same is not sufficient to warrant the issuance of an order of stay of execution. 24.Moreover, the Applicants’ appeal is not likely to be rendered nugatory if the Applicants are evicted from the parcel of land. This is because the substratum of their appeal is immovable property, and the Applicants have not demonstrated any likelihood of disposition of the land. 25.The Respondent further submits that she, in comparison, is likely to be greatly prejudiced if the stay of execution is granted, for she is the registered proprietor of the suit parcel of land, who continues to be denied access, occupation, and enjoyment of the land by the Applicants. The court is called upon to balance the interests of the Respondent, the successful litigant, with those of the Applicants, and prayed that the application be dismissed with costs. Analysis and Determination 26.Having considered the instant application dated 28th August 2024, the replying affidavit, and the rival submissions, I opine that the following issues arise for determination of this Court. Should the Court grant the Applicants the opportunity to have the firm of Karanja Maina & Co. Advocates enter on record on their behalf, and should the Notice of Appeal dated 2nd August 2025 be deemed properly filed? Should the Court grant the Applicant a stay of the ruling delivered on 31st July 2025? Should the Court grant the Applicants the opportunity to have the firm of Karanja Maina enter on record on their behalf, and should the Notice of Appeal dated 2nd August 2025 be deemed properly filed? Costs 27.The firm of Muhoho Gichimu & Co. Advocates previously represented the Applicants herein, who were the Respondents in the main application. The firm of Karanja Maina & Co. Advocates now seeks leave to represent the Respondents/Applicants herein. 28.This is pursuant to Order 9 rule 9 of the Civil Procedure Rules, which provides that:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person, as the case may be.” 29.However, the said firm of Karanja Maina & Co. Advocates had filed the Notice of Appeal dated 2nd August 2025 and also wishes to have the same regarded as properly filed. The Court of Appeal in the case of Ruth Munda Gituro v David Meitikini Maki & 3 others [2024] KECA 1204 (KLR) cited and relied upon by the Respondent herein held as follows in striking out the notice of appeal:“…Yet, there is a second reason to striking out the notice of appeal herein. It is that, as the applicant has correctly submitted, the notice of appeal was filed by a firm of advocates – R. Miruka & Co. Advocates – who were not on record for the 1st and 2nd respondents in the superior court – yet, it was so filed without the leave of the Court. This is what has led the applicant to term them “strangers” to the case……..It is true that courts, and, in particular, this Court has a policy preference for determining matters on their merits where possible. It is also true, however, that that policy preference is not licence writ-large for litigants to ignore well-established rules of the game – especially where those rules serve substantive policy goals. As this Court has recently stated, the rule stipulated in Order 9 Rule 9 of the Civil Procedure Rules has substantive and sound policy rationale: to protect an advocate from a litigant who may choose to avoid paying legal fees by instructing another advocate. It also has an inbuilt protection for the litigant against an unreasonable advocate by allowing the court to give leave – of course, subject to the conditions that the court places. (See Municipal Council of Kisumu v Gulf Fabricators Limited & Another (Kisumu Civ. Application No. E103 of 2023). It is, therefore, not enough for the 1st and 2nd respondents to ponderously cite Article 159(2)(c). It behooved them to demonstrate that the deficiency in adhering to the rules of procedure were merely technical. They failed to do so. Indeed, as we have shown, the rule they failed to comply with serves a substantive goal and is not merely formalistic.” 30.Thus, while the firm of Karanja Maina & Co. Advocates can very well be granted leave to come on record for the Applicants herein, the representation cannot act retrospectively to regularize the position of the Notice of Appeal filed by them without leave of the Court. In my view, the Notice of Appeal cannot be deemed as properly filed and, on that point alone, ought to be struck out. 31.On the merits, should the Court grant the Applicant a stay of the ruling delivered on July 31, 2025? In that ruling, this Court (Olola J) allowed the application of the Applicant/Respondent dated February 20, 2024, seeking an order that the Respondents be evicted from the suit property known as Nyeri/Municipality Block 2/1326 and that they deliver vacant possession to the Applicant. The Court observed that the Applicant/Respondent had attached a certificate of lease to her supporting affidavit, demonstrating her status as the registered proprietor of the suit property, while the Respondents had not presented any evidence contesting the Applicant’s proprietorship. 32.Stay pending appeal is provided for by Order 42 Rule 6 of the Civil Procedure Rules which provides that:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on the application being made, to consider such application and to make such order thereon as may to it seems just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.” 33.In the case of Butt v Rent Restriction Tribunal [1979] eKLR the Court of Appeal underscored the considerations for the grant or refuse a stay of execution pending appeal. The Court said that the power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, that if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the court, in exercising its discretion as to whether to grant or refuse an application for a stay, will consider the special circumstances of the case and its unique requirements. 34.Order 42 rule 6(2) provided the elements that the Court will consider in an application for stay of execution:“(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; and(b)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.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.” 35.Substantial loss was described in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, which the Applicants relied on as follows:“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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 36.I note that it is important to balance the stay with the successful litigant’s right to enjoy the fruits of the judgment. In Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, the Court held that:“As I said I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.” 37.However, it was held in the James Wangalwa Case (Supra) that imminent execution does not necessarily amount to substantial loss. The Court held that:“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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga quoted above.” 38.The Applicants have not detailed the substantial loss they will suffer if execution occurs, aside from lawful eviction. They were earlier issued an eviction notice, which was exhibited and marked as ‘ZWN 3’ to the Applicant/Respondent’s supporting affidavit as an advertisement in The Standard Newspaper on October 9th, 2023. They were instructed to remove the structures on the suit property, including electricity poles, water pipes, and growing crops. The Applicants have not even stated what business they have on the suit property, or what loss will be caused to them if they move out of the same and grant vacant possession to the Applicant in the substantive application. 39.There is nothing to indicate that an appeal by the Applicants herein will be rendered nugatory if orders for stay are not granted. Besides, with negative orders in place, the Applicant ought to have moved the Court of Appeal to seek the orders sought here. The application herein lacks merit and is hereby dismissed with costs. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 13TH DAY OF MAY 2026.____________________________E. K. MAKORIJUDGEIn the presence of:Mr. Karanja for the ApplicantMs. Wangechi for the RespondentMr.Ododa for the 16th RespondentKendi: Court Assistant