Mbagu (Suing on her behalf and as the administrator of the Estate of the Late David Mbagu Kingeche - Deceased) & 4 others v Karura Farmers Company Limited & 8 others (Environment & Land Case 3017 of 1990) [2024] KEELC 7578 (KLR) (11 November 2024) (Ruling) Neutral citation: [2024] KEELC 7578 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT & LAND CASE 3017 OF 1990 LN MBUGUA, J NOVEMBER 11, 2024 BETWEEN HANNAH NYAMBURA MBAGU (SUING ON HER BEHALF AND AS THE ADMINISTRATOR OF THE ESTATE OF THE LATE DAVID MBAGU KINGECHE - DECEASED) .................................................................. 1ST PLAINTIFF AGNES NYAMBURA MUGO (SUING ON HER BEHALF AND AS ADMINISTRATOR OF THE ESTATE OF THE LATE JAMES MUGO WAWERU DECEASED) .......................................................................................... 2ND PLAINTIFF KARUTHI KARANJA ........................................................................ 3RD PLAINTIFF HANNAH NYAMBURA MBAGU ..................................................... 4TH PLAINTIFF SUSAN NJERI WAINAINA (SUING AS THE ADMINISTRATOR OF THE ESTATE OF THE LATE HENRY WAINANINA KARIUKI) .......... 5TH PLAINTIFF AND KARURA FARMERS COMPANY LIMITED ............................... 1ST DEFENDANT SAMUEL KUNGU ........................................................................... 2ND DEFENDANT FESTUS KADENGE ......................................................................... 3RD DEFENDANT GRACE GATHURI .......................................................................... 4TH DEFENDANT PETER MUGO MBUTHIA ............................................................. 5TH DEFENDANT PETER MARERI .............................................................................. 6TH DEFENDANT FLORENCE WANGUI ..................................................................... 7TH DEFENDANT BENJAMIN MATHINGI ................................................................. 8TH DEFENDANT PETER MUNGAI ............................................................................. 9TH DEFENDANT https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7578/eng@2024-11-11 1
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RULING 1. Before me is the 2nd and 9th defendants Notice of Motion Application dated 15.10.2024 seeking an order for stay of execution of the judgment pending the hearing and determination of the intended appeal. The application is premised on grounds on the face of the application and the supporting adavit of Samuel Kungu, the 2nd defendant. The applicants contend that they were aggrieved by the judgment of this court delivered on 3.10.2024 and they have duly led a Notice of Appeal. They contend that they stand to suer irreparable harm if the orders sought are not granted. 2. The 1st, 3rd, 4th & 5th plaintis have opposed the application vide the Replying Adavit sworn by the 3rd plainti on 28.10.2024. They contend that mere occupation which is illegal cannot be a ground to claim substantial loss, and that it is not enough for the applicants to aver that they will suer irreparable harm. It is further argued that the applicants have not oered any security. 3. The 2nd plainti has also opposed the application vide her Replying Adavit dated 28.10.2024. She avers that the applicants have not demonstrated any substantial loss that they stand to suer if the application is not allowed, adding that the suit is one of the oldest in this station. 4. I have considered the rival arguments relating to the question of STAY OF THE JUDGMENT. Matters relating to stay of execution are governed under the provisions of Order 42, Rule 6 of the Civil Procedure Rules. But again, the relief of stay is discretionary and the discretion must be exercised judiciously and upon dened principles of law; not capriciously or whimsically, See Loice Khachendi Onyango v Alex Inyangu & Another [2017] eKLR. 5. I have also taken into account that land is an emotive issue, hence it is only fair and just that the applicants be given an opportunity to ventilate their grievances in a higher court. Further, a notice of appeal has duly been lodged. Weighing the interests of the protagonists, and considering that the matter has been in court for many years (since 1990), the court hereby grants a stay of execution of the judgment dated 3.10.2024 for a period of 90 days from the date of delivery of this ruling. The applicants shall pay costs of the application to the plaintis. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF NOVEMBER 2024 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Matwere for 1st, 3rd, 4th, 5th Plaintis Jane Okoth for 2nd Plainti Oyugi for 2nd & 9th Defendants/Applicants Court Assistant: Vena https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7578/eng@2024-11-11 2
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