Ngugi v Wangui (Suing in his capacity as the personal representative of the Estate of Mary Wangui Kariuki - Deceased) & 2 others (Environment and Land Appeal E007 of 2026) [2026] KEELC 3329 (KLR)

4. That the Court be pleased to give such further or better relief as it may deem fit and just to grant. 5. That the costs of this application be provided for. 3. The motion is based on several grounds and the afidavit of the appellant dated 19-3-2026. The gist of the grounds and the afidavit is as follows. Firstly, on 26-2-2026 the learned trial magistrate issued an interlocutory injunction in the lower court case whereby the appellant was restrained personally or through anybody claiming through her form entering, erecting structures, alienating or in any way interfering with or committing any acts that adversely afiect the respondent’s right to any claim in respect to the parcel of land known as Plot No. 1323 (Kariua Mwiriukia Farmers Co-operative Society Ltd) also known as Samuru/Mwitingiri/Block 1/1323, suit land, pending the hearing and determination of the lower court suit. An interim injunction was also issued against the 4th defendant in the lower court and the 3rd respondent herein restraining it from further dealing with the suit parcel pending the conclusion of the lower court suit. Secondly, the said orders adversely afiect the appellant’s proprietary rights over the suit land because it is the appellant who is in possession of the same. Thirdly, the orders issued by the court amount to eviction of the appellant form the suit land. Fourthly, the orders forbidding the transfer of the suit property have been overtaken by events because the transfer took place before the suit was filed. Finally, the best order would be for the maintenance of status quo so that the appellant retains possession without putting up permanent buildings on the suit land. 4. The motion is opposed by the 1st respondent who has sworn replying afidavit dated 10-4-2026 in which he replies as follows. One, the suit property was vacant when the ruling of 26-2-2026 was delivered. Two, the suit land was transferred to the appellant in blatant disregard of succession laws, two days after the death of the registered owner, Mary Wangui Kariuki. Three, the transfer to the appellant has not been efiected. Four, allowing the orders sought would expose the suit land to wastage, damage and alienation rendering the pending suit in the Magistrates Court nugatory. Finally, the balance of convenience tilts in favour of dismissing the motion. 5. In her supplementary afidavit dated 21-4-2026, the appellant rejoins as follows. Firstly, upon taking possession of the suit plot she built a perimeter fence and a gate to her matrimonial home which is on abutting land, constructed an outdoor gazebo, built an outdoor fireplace and landscaped the area by planting grass, trees and fiowers. Secondly, she uses the suit land as a relaxation area and continuously takes care of the vegetation on it. Thirdly she has no intention of alienating the land and prays that she be allowed to continue with possession pending the hearing and determination of the case. Fourthly, on 23-2-2026 she was issued with a certificate of lease by the Land Registrar Murang’a . She has no intention of charging the land or selling it. She is also not asking for the discharge of the entire injunction but only of the part that bars her from entering yet she is already in possession. Such possession was even before the suit was filed. The order restraining her from being issued with a certificate of lease has been overtaken by events. At the time of filing the application for injunction, the appellant had already been issued with the lease document. 6. Counsel for the parties filed written submissions dated 7-5-2026 and 15-5-2026. The issues raised in the submissions are as follows. 7. a. Whether a party in possession of land can be evicted from such land at an interlocutory stage. b. Whether the transfer of the suit land took place before or after the order of 26-2-2026. I have carefully considered the motion in its entirety including the supporting afidavit, the grounds, the replying afidavit, the supplementary afidavit, the written submissions, the law cited and the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3329/eng@2026-06-02 2

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issues identified. I find that the application having been brought under order 42 rule 6(2) of the Civil Procedure Rules and being one that seeks stay of execution, the Court’s determination will centre on the conditions precedent to the grant of an order stay of execution. The rule provides as follows. “ 2. No order for stay of execution shall be made under rubrule (1) unlessa. the court is satisfied that substantial loss may result to the Applicant unless the order is made and 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.” The issues that arise from order 42 rule 6(2) of the Civil Procedure Rules as the following. 8. i. Whether the Appellant stands to sufier substantial loss if the orders sought are not allowed. ii. Whether the application has been filed without unreasonable delay. iii. Whether the security for the due performance of the decree or order that may be passed against the Appellant has been given. Regarding the first issue, I find that the appellant does not stand to sufier substantial loss if the application is not allowed. She had not demonstrated what is so important about her occupying the disputed land. She has no home on the land and has no fragile economic activity that would go into ruin if she did not stay on the land. The gazebo, the fiowers, the perimeter wall and the landscaping can all await the outcome of the case. The lease documents have been acquired when the application for injunction has been pending, it being dated 23-7-2024. The hurry by the appellant to preempt the order of injunction is apparent. The assertion by the 1st respondent that the suit land was vacant on 26-2-2026 when the order of injunction could well be true. If it were true, the court would be rewarding impunity. As was held in the case of Selle vs. Associated Motor Boat Co. Ltd [1968] EA 123 an appellate court should bear in mind that it is disadvantaged in comparison to the trial court. In this case, there are many facts that are unknown to me but are known to the learned trial magistrate who issued the order of injunction. The only record that I have is a copy of the ruling dated 28-2-2026. All the water that has gone under the bridge since 23-7-2024 when the suit was filed is unknown to me. In the absence of any tangible development of the suit land by the appellant, it is dificult to understand why she is so keen on possessing land whose transfer to her and her ownership of it is highly disputed. Substantial loss has not been proved. 9. Regarding the second issue, I find that the motion was filed without unreasonable delay. The ruling of the lower court is dated 26-2-2026 and this appeal was filed on 17-3-2026. A period of less than the 30 days which is the period allowed by section 79G of the Civil Procedure Act for filing an appeal is, in my view, reasonable. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3329/eng@2026-06-02 3

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10. On the third issue, the appellant has ofiered such security as the court may determine vide paragraph 6 of the afidavit dated 19-3-2026. While this ofier of security is a show of good faith, the question that arises is “ Why ofier security for the land where you have nothing at stake? Why not keep ofi the land and ofier no security?” I find that the Appellant should keep ofi the suit land than occupy it and ofier security. 11. The three conditions under order 42 rule 6(2) Civil Procedure Rules are conjunctive and not disjunctive. An applicant seeking stay of execution pending appeal must satisfy all the statutory requirements of substantial loss, absence of reasonable delay and provision of security. Failure to satisfy any one of the three conditions disentitles the applicant to the remedy. The use of the word “and” after the word made in subsection 2(a) and at the end of the same subsection means that all the three conditions must be satisfied. In this case the appellant has not proved substantial loss. 12. In conclusion and for the reasons already given. I find no merit in the motion dated 19-3-2026 which I dismiss. Costs in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF JUNE, 2026. M. N. GICHERU JUDGE Delivered online in the presence of; Court Assistants - Antony. Appellant’s Counsel - Miss Natocho holding brief. 1st Respondent’s Counsel - Mr Kamau. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3329/eng@2026-06-02 4

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