REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MURANG’A ELCLA E018 OF 2026 HANNAH WAIRIMU KARIUKI ……………………..……………..….……....…….. APPELLANT VERSUS JOSEPH MAINA KARIUKI ……………..……………………….……..………….RESPONDENT (Being an appeal from the decision of the Honourable Senior Principal Magistrate – C.A. Mayamba in Kigumo MCELC No. 1 of 2019 delivered on the 14th May, 2026) RULING 1) This ruling is on the notice of motion dated 3-6-2026. The motion which is brought under Order 42 rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law seeks one residual order. 3. That pending the hearing and determination of this appeal, there be a stay of proceedings and/or execution in Kigumo MCELC Case No. 1 of 2019. 4. That the costs of this application be provided for. 2) The motion is based on Seven(7) grounds and is supported by an affidavit sworn by the Applicant dated 3-6-2026. The gist of the grounds and the affidavit is as follows. One, the Appellant is aggrieved by the ruling and order delivered on 14-5-2026 in Kigumo MCELC Case No. 1 of 2019 and has lodged an appeal against the whole ruling. In the ruling the learned the learned trial magistrate dismissed the Appellant’s application seeking stay of proceedings pending the determination of proceeding before the High Court Family Division. Two, the intended appeal is arguable and raises serious issues of the law and fact with high chances of success. Three, the proceedings before the lower Court are directly connected to the pending proceedings in Milimani High Court Family Division Succession Cause No. 2923 of 2004 touching on the validity of the subdivision and distribution of parcel No. Loc. 2/Gacharage/676. Four, unless the orders sought are granted, the proceedings before the MRG ELCLA E018 OF 2026 1R of 4
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lower court may proceed thereby rendering the appeal herein nugatory. Five, the Appellant has resided on the suit land for several years and risks suffering substantial loss and prejudice if the proceedings before the lower Court proceed before the appeal is heard and determined. Six, the learned trial Magistrate failed to appreciate that the application before him merely sought stay of proceedings pending the hearing and determination of HCC Succession Cause No. 2923 of 2004 which touch on the validity of the subdivision and distribution of land parcel No. Loc. 2/Gacharage/676 which forms the basis of the proceedings before the lower Court. Six, land parcel No. Loc. 2/Gacharage/3882 which the Respondent seeks to evict the Appellant from is a subdivision of Loc. 2/Gacharage/676. If this Application is not allowed, the lower Court case might proceed to the detriment of the Applicant. The proceedings before the lower Court are directly connected to the pending success proceedings before the High Court Family Division. Finally, this application has been brought without unreasonable delay and it is utmost good faith. 3) The motion is opposed by the Respondent who has sworn a replying affidavit dated 13-72026 in which he states as follows. Firstly, the application is malicious, incompetent and full of falsehoods. Secondly, the Applicant had filed several similar applications and the Court had pronounced itself with finality and no appeal was preferred. There is nothing for this Court to hear and determine and the appeal has no merit. Thirdly, the claim in the lower Court concerns trespass which has attracted a criminal case leading to a guilty verdict and any stay of proceedings is prejudicial to the Respondent. Finally, the Appellant has not demonstrated any ground or prejudice that she will suffer if the lower Court determines the suit before it. 4) I have carefully considered the motion in its entirety including the grounds, the supporting affidavit as well as the replying affidavit. Counsel for the parties were to file and serve written submissions by 31-7-2026. At the time of writing this ruling on 21-8-2026, no submissions have been filed by either party. Proceeding under Order 15 rule 2 of the Civil Procedure Rules, I identity the issues for determination as follows. MRG ELCLA E018 OF 2026 2R of 4
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(i) Whether the Appellant stands to suffer substantial loss if the motion is not allowed. (ii) Whether the motion has been filed without unreasonable delay. (iii) Whether the Appellant has given security for the due performance of such decree or order as may ultimately be binding on her. 5) Regarding the first issue, I find that the Appellant has not demonstrated that she stands to suffer substantial loss. She is not saying that she will not be accorded a fair hearing by the lower Court. She is not saying that she is being evicted from the land that she occupies before the conclusion of the lower Court suit. If she was saying any of the above, perhaps the Court would find merit in the current motion. She should therefore present her case before the lower Court and wait for the final outcome and only appeal if there is finality in the lower Court suit. 6) As for the second issue, I find that the motion has been filed without unreasonable delay because the ruling appealed against was delivered on 15-5-2026 and this appeal was filed on 8-6-2026. 7) Looking at the final issue for determination, I find that the Appellant has not made any commitment for the due performance of the decree that may be binding upon her. From the annexures filed by the Respondent it is clear that this dispute has been pending since the year 2004 which is about 22 years. This long litigation must have occasioned the parties huge financial costs. The Appellant in her affidavit dated 3-6-2026 has not said anything about how she will pay the Respondent’s costs in the event she is not successful in her appeal. 8) In conclusion and for the reasons given, I find that the Applicant has satisfied only one of the conditions prerequisite to staying execution pending appeal, yet under Order 42 rule 6(2) under which this motion is based, all the three conditions must be satisfied for his motion to be successful. MRG ELCLA E018 OF 2026 3R of 4
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I find no merit in the motion dated 3-6-2026 which I dismiss with costs. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 23rd day of September, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony Appellant’s Counsel – Miss Waititu Respondent’s Counsel –Miss Maina h/b for Njiraini MRG ELCLA E018 OF 2026 4R of 4
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