Kirera & 14 others v Kiambati & 2 others (Environment and Land Case E042 of 2025) [2026] KEELC 3807 (KLR)

RULING 1. The defendants are daughters of the late M’Kiambati S/o Ndirai. They are sisters of the late Kirera Kiambati alias M’Kirera M’Kiambati. Following land adjudication in Upper Chure, land parcel number 88, measuring 6.605 hectares, was registered in the name of Kirera Kiambati in 1963. 2. The plaintifis are beneficiaries of the estate of the late Kirera Kiambati. In 2015, they initiated a succession cause relating to the estate of the late Kirera Kiambati and procured a grant in which the late Eliphaz Riungu Kiambati was appointed as the administrator of the estate of the late Kirera Kiambati. Subsequent to that, they procured a certificate confirming the said grant, in which the High Court in Chuka High Court Succession Cause No 435 of 2015 devolved the suit land to them. They embarked on subdivision of the land into 21 parcels in pursuance of the succession orders. 3. Aggrieved, the defendants initiated a claim anchored on customary trust in Nkubu SPMC E & L Case No 27 of 2019 against: (i) the Administrator of the Estate of the Late Kirera Kiambati [Eliphaz Riungu Kiambati]; (ii) Jamlick Gitonga Kirera; and (iii) Harrison Muthuri Riungu. The Magistrate Court at Nkubu conducted trial and rendered a judgment dated 16/6/2022 in which it decreed that land parcel number Abogeta/U-Chure/88 was ancestral land [trust land] and the defendants were entitled to part of it. The court further decreed cancellation of the subdivisions that had been procured through succession and ordered the administrator of the estate of the late Kirera Kiambati to register part of the land in the names of the defendants. 4. Dissatisfied with the judgment and decree in Nkubu SPMC E & L Case No 27 of 2019, the estate and the other two defendants in the suit filed Meru ELC Appeal No E034 of 2022. The said appeal was heard and disposed by this court [Yano J] vide a judgment dated 1/2/2024. This Court re-evaluated the evidence and came to a finding that the suit land was trust property that was held by the late Kirera Kiambati on behalf of the family of the late M’Kiambati S/o Ndirai. This court dismissed the appeal for lack of merit. It is not clear if the estate lodged a second appeal to the Court of Appeal. 5. What is clear is that, the beneficiaries of the estate of the late Kirera Kiambati went back to the drawing board and decided to initiate the present suit as a fresh claim in their individual names in the Environment and Land Court. Through their plaint dated 19/5/2025, they pray for: (i) a declaration that land parcel number Abogeta/U-Chure/88 [hereinafter referred to as “the suit land”] belonged to Kirera Kiambati and that the defendants are not entitled to any part of the land as it was not ancestral land or trust land; (ii) a declaration that Nkubu Magistrate Court E & C Case No 27 of 2019 violated the sacred tenets and rules of natural justice and contravened their right to property by condemning them unheard; (iii) an order revoking all the orders and the decree in Nkubu Magistrate Court E & L Case No 27 of 2019 due to their non-participation; (iv) an order revoking the amalgamation of the 21 subdivisions that had been surveyed out of the suit land; and (v) an order awarding them costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3807/eng@2026-06-18 2

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6. Together with the plaint, the plaintifis brought a notice of motion dated 19/12/2025 seeking an order of stay of execution, staying the judgment and decree in Nkubu SPMC E & L Case No 27 of 2019 pending the hearing and determination of this suit. The said application is the subject of this ruling. 7. The application was premised on the grounds outlined in the motion and in the two afidavits of Juster Nkuene Kirera, dated 19/12/2025 and 4/4/2026 respectively. It was canvassed through written submissions dated 10/4/2026, filed by M/s Kaunyangi & Company Advocates. The case of the plaintifis is that all the parties in this suit are related and are descendants of the late Kiambati S/o Ndirai. Most of the plaintifis are grandchildren of Kiambati S/o Ndirai, sired by the late Kirera Kiambati. The three defendants are daughters of the late Kiambati S/o Ndirai. 8. The plaintifis contend that the suit land has always been the late Kirera Kiambati’s property, adding that upon his death, the beneficiaries of his estate settled on his brother, Eliphaz Riungu Kiambati as the administrator of his estate and initiated Chuka High Court Succession No 435 of 2015 in which they procured a certificate of confirmation of grant on 14/9/2016. 9. They add that upon obtaining the certificate of confirmation of grant, the suit land was subdivided into 21 parcels surveyed as parcel numbers 3489 – 3510. Eight of the beneficiaries had paid for title deeds and had been registered through the succession order by the time the defendants lodged Nkubu SPMC E & L Case No 27 of 2019. 10. The plaintifis fault the defendants for proceeding with Nkubu SPMC E & L Case No 27 of 2019 without joining all the beneficiaries. They further fault them for not bothering to apply for a nullification of the certificate of confirmation of grant. They add that the value of the suit land was above the pecuniary jurisdiction of the Lower Court. Further, the applicants fault the trial court for granting an order of amalgamation yet it was never sought. 11. They argue that it is important to preserve the suit land through an order of stay of execution. 12. The defendants opposed the application through a replying afidavit sworn on 22/1/2026 by Elizabeth Nchoro Mbae and written submissions dated 18/4/2026, filed by M/s Kiogora Arithi & Associates Advocates. The case of the defendants is that the suit land belonged to their late father, M’Kiambati S/o Ndirai, who caused it to be registered in the name of his eldest son, Kirera Kiambati, to hold it in trust for the family. They add that while aware that the suit land was trust property, the plaintifis, in collusion with the late Eliphaz Riungu, secretly procured succession orders relating to the trust property. Aggrieved, they went to a court empowered to deal with land ownership disputes where they sued the administrator of the estate together with the two beneficiaries to whom the administrator had already conveyed subdivision titles at the time. 13. The defendants add that the estate and the two other people were heard and the trial court made a merit determination vide a judgment dated 16/6/2022 in which it found that the suit land was trust property. Aggrieved by the judgment, the estate and the two other people filed Meru ELC Appeal No E034 of 2022 and they were heard by this court on the merits of the appeal. This court disposed the appeal through a merit judgment dated 1/2/2024, a fact which the plaintifis have concealed from this court. They assert that the estate’s appeal was dismissed for lack of merit. They state that, as identified beneficiaries, the plaintifis were all along aware of the proceedings. They further contend that the administrator of the estate represented the estate and the beneficiaries of the estate. 14. The defendants argue that the plaintifis’ claim is res-judicata and is statute-barred under Section 7 of the Civil Procedure Act. They add that the plaintifis have not satisfied the criteria for granting an order of stay of execution under Order 42 rule 6 of the Civil Procedure Rules. They urge the court to dismiss the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3807/eng@2026-06-18 3

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15. The court has considered the application, the response to the application and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. The single issue to be determined in this ruling is whether the application dated 19/12/2025 meets the criteria for granting an order of stay of execution under Order 42 rule 6 of the Civil Procedure Rules. 16. The plaintifis/applicants invited the court to exercise jurisdiction under Order 42 rule 6 of the Civil Procedure Rules and grant an order of stay of execution in relation to the judgment and decree in Nkubu SPM E & L Case No 27 of 2019. The jurisdiction of this court under Order 42 rule 6 of the Civil Procedure Rules is exercised when the Court is seized of an appeal or an intended appeal. The jurisdiction is not available to the Court when the Court is exercising its original jurisdiction as a trial court or as a first instance court. In the present application, this court is not exercising appellate jurisdiction. This court exercised appellate jurisdiction over the material judgment and decree in Meru ELC Appeal No E034 of 2022 which it disposed through a merit judgment on 1/2/2024. Put difierently, in the absence of a live appeal or an intended appeal in this court, the Court has no platform on which to stay the judgment and decree in Nkubu SPMC E & L Case No 27 of 2019. 17. Had the applicants satisfied the criteria of existence of a pending appeal or an intended appeal, they would be expected to fulfil the requirements of Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:“ 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.” 18. Besides the absence of an appeal, the applicants have not made any efiort to satisfy the requirements of Order 42 rule 6(2) of the Civil Procedure Rules. In the circumstances, the court has no proper basis upon which to grant an order of stay of execution under Order 42 rule 6 of the Civil Procedure Rules as sought by the applicants. 19. A lot has been said by the respondents about res-judicata. The court will refrain from making any definitive pronouncement on the issue because, first, res-judicata is a jurisdictional issue and this court has not been properly moved to make a definitive pronouncement on it. Secondly, the plaintifis have not been properly invited to respond to the issue. The defendants are at liberty to canvass the issue on an appropriate platform. 20. For the above reasons, the application dated 19/12/2025, which is an invitation to a trial court to exercise appellate jurisdiction and issue an order of stay of execution in an original cause, staying a judgment and a decree of a lower court that have already gone through the appeal mechanism, is rejected and dismissed for lack of merit. In tandem with the general principle in Section 27 of the Civil Procedure Act, the applicants shall bear costs of the application DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF JUNE, 2026. B M EBOSO [MR] ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3807/eng@2026-06-18 4

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