Peter Igiria Nyambura & 1 other v Margaret Njoki Muchiri & 2 others

2. In their suit before the ELC, the applicants had sought orders to nullify the transfer of the properties Title Numbers Dagoretti/Riruta 4080, 4084 and 4085 in favour of the 1st and 2nd respondents, Margaret Njoki Muchiri and Wells Publishing Limited, on grounds that the same had been procured fraudulently. The 1st and 2nd respondents denied the claim and counterclaimed against the applicants asserting that they purchased the properties from the deceased. In the judgment delivered on 24th April 2024, Angote, J. found that there was no merit in the applicants’ claims and that the 1st and 2nd respondents are the legitimate proprietors of the properties. The court ordered the applicants to grant the 1st respondent vacant possession of Title No. Dagoretti/Riruta/4080 within 90 days failure to which eviction to issue; it declared that the sale of Dagoretti/Riruta/4084 and 4085 to the 2nd respondent was valid and restrained the applicants, by order of injunction, from interfering with the 2nd respondent’s access, use, possession and quiet enjoyment of those properties. 3. The applicants made an application for stay of execution dated 8th May 2024 before the ELC which was dismissed in a ruling delivered on 8th April 2025 having found that the 1st respondent had already executed the decree and was in possession of Title No. Dagoretti/Riruta/4080. 4. We heard the present application on 9th December 2025. Learned counsel Mr. Kibe Mungai appeared for the applicants. Learned counsel Mr. Mahugu appeared for the 1st respondent, whilst learned counsel Mr. Mukonyi held brief for Mr. Ambrose Weda for the 2nd respondent. There was no appearance for the 3rd respondent. At the request of Mr. Mungai, the application as against the 3rd respondent was marked as withdrawn. 5. In submissions in support of the application, Mr. Mungai urged that the intended appeal is arguable; that there are issues of fraud that did not receive full consideration before the ELC; that unless the orders sought are granted, the applicants will be evicted as the 2nd respondent served the applicants with an eviction notice dated 19th April 2025 in respect of the land Dagoretti/Riruta/4084 and 4085; and in that event the intended appeal will be rendered nugatory. 6. Mr. Mahugu on his part pointed out that the 1st respondent is in possession of Dagoretti/Riruta/4080 and the application in so far as it relates to the 1st respondent ought to have been withdrawn; that the dispute is really between the applicants and the 2nd respondent over possession of Title Numbers Dagoretti/Riruta/4084 and 4085. 7. Mr. Mukonyi for the 2nd respondent on his part asserted that the judgment has in part been executed and that the 2nd respondent was in the process of evicting the applicants from Title Numbers Dagoretti/Riruta/4084 and 4085 and they would be prejudiced if the orders sought are granted as they will be denied the fruits of the judgment having patiently waited for 12 years. 8. We have considered the application against the established principles as stated, for instance, in Stanley Kangethe Kinyanjui vs. Tony Ketter and 5 Others [2013] KECA 378 (KLR). Mindful, as we are that "an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court, one which is not frivolous", (See Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Limited & 2 Others, Civil Application No. 124 of 2008)[2009] KECA 201(KLR), we are prepared to give the applicants the benefit of doubt and find that the intended appeal is not frivolous. There is for instance the question whether the learned Judge of the ELC erred in finding that the applicants had failed to discharge their burden of proof regarding their claims on fraud. 9. On the nugatory aspect, it is evident that in as far as Dagoretti/Riruta/4080, the judgment of the ELC is already executed and the 1st respondent is in possession. However, in relation to Title Numbers Dagoretti/Riruta/4084 and 4085, although counsel for the 2nd respondent asserted from the bar that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1261/eng@2026-07-03 2

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execution in that regard is partially executed, there is no supporting material before us in that regard. In the circumstances, we order that the status quo as regards to the legal and physical possession of Title Numbers Dagoretti/Riruta 4084 and Dagoretti/Riruta 4085 be maintained pending the hearing and determination of the intended appeal. 10. Costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026. S. GATEMBU KAIRU, FCIArb, CArb. ……………………………………… JUDGE OF APPEAL F. TUIYOTT ………………………………… JUDGE OF APPEAL P. NYAMWEYA ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1261/eng@2026-07-03 3

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