Salome Wanjiru Njenga (Suing as the Legal Representative of the Estate of Joseph Ngochi Kiritu) & 2 Others v Charity Muthoni Muhuri (Sued as the Administrator and Legal Representative of the Estate of Charles Mureithi Muhuri) & Daniel Njuguna Kiritu (Interested Party)

the judgment delivered on 12th February 2026, decree and all consequential orders arising therefrom in Nyahururu CMCELC Case No. 170 of 2018-Charity Muthoni Muhuru suing as the Administrator and Legal Representative of the Estate of Charles Mureithi vs Daniel Njuguna Kiritu. ii. That pending the hearing and determination of the appeal the respondent by herself, her agents, servants or otherwise howsoever be restrained from evicting, entering upon, selling, charging, transferring, assigning of and/or otherwise dealing with the property known as L.R No. Nyandarua/Wawingo Salient/29. iii. 2. That the cost of the application be provided for. The application is premised on the grounds that the applicants had sought review of the judgment delivered in Nyahururu CMCELC Case No. 170 of 2018 and the decree issued therefrom on the ground that they were issued without their participation; that their application for review of the judgment was, vide a ruling delivered by the trial court on 5th June, 2026, dismissed and that they preferred NYAHURURU ELCA NO. 15 OF 2026 - RULING 2|Page

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an appeal against the ruling of the trial court, which appeal raises triable issues. 3. The applicants complain that despite not being parties to the suit, warrants for vacant possession of L.R. No. Nyandarua/Mawingo Salient/29 (the suit property) were issued against them. Explaining that they have been in use and occupation of the suit property for over 25 years, the applicants aver that the intended eviction against them would deprive them their livelihood and render them homeless. The applicants are apprehensive that unless the orders sought are granted, their appeal may be rendered nugatory and a mere academic exercise. 4. In reply and opposition to the application, the respondent through her affidavit sworn on 16th September, 2026 has given a detailed account of the suit/suits between herself and the interested party herein. The respondent points out that the trial court dismissed the applicants’ application for review of its judgment on the ground that the applicants knew about the suit and the proceedings in respect thereof but failed to apply to be joined as parties NYAHURURU ELCA NO. 15 OF 2026 - RULING 3|Page

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to it until the matter had substantially progressed. 5. Terming the instant application, a collusion between the interested party and the applicants to frustrate or circumvent the eviction orders issued against them, the respondent contends that the application is meant to delay or frustrate enforcement of the court judgment after unsuccessful proceedings in the High Court and the Court of Appeal. 6. Pursuant to directions given on 16th September 2026, the application was disposed of by way of written submissions. 7. In their submissions, the applicants have placed reliance on Order 42 Rule 6(1) & (2) of the Civil Procedure Rules which gives an appellate court discretionary power to issue an order of stay of execution where appropriate. The applicants have given the legal parameters for grant of an order of stay of execution pending appeal namely; the Court must be satisfied that substantial loss may result to the applicant unless a stay is granted; the application NYAHURURU ELCA NO. 15 OF 2026 - RULING 4|Page

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must have been made without unreasonable delay and that the applicant must provide security for due performance of such obligation as may ultimately vest upon him or her arising from the appeal. 8. Regarding the issue of substantial loss, the applicants aver that they have been living in the suit property for over 25 years; that they were not parties to the suit in which the orders of eviction against them were issued and that they were never served with the pleadings or informed of the proceedings in which adverse orders were issued against them. 9. Arguing that failure to join them in the suit in which adverse orders were made against them denied them an opportunity to participate in the proceedings thereby violating their fundamental right to a fair hearing, based on the decision in the case Merry Beach Limited-VsAttorney General & 18 Others (2018) eKLR in which the Court of Appeal held that a party should not be prejudiced or affected by an adverse decision without being given an opportunity to be heard, the applicants NYAHURURU ELCA NO. 15 OF 2026 - RULING 5|Page

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maintain that denying them an opportunity to participate in the proceedings violated their fundamental right to a fair hearing. 10. The applicants have also placed reliance on: i) Rule 5(d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules). The Rule allows a court, in appropriate circumstances, to add a person who ought to have been joined or whose presence is necessary for determining a dispute. ii) The case of J.M.K -Vs-M.W.M & Another (2015) e KLR for the proposition that, in exceptional circumstances, a person against whom adverse orders have been made without notice or a hearing may be joined so that they can be given an opportunity to be heard. It is the aapplicants’ case that they have an identifiable interest in the suit property which should not be extinguished before the appeal is heard. 11. Terming the respondent’s suit technically time barred, the NYAHURURU ELCA NO. 15 OF 2026 - RULING 6|Page

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applicants point out that the respondent obtained title in respect of the suit property in 1990 and filed the suit hereto in 2018, about 33 years later, without leave of the court. 12. In her submissions, the respondent terms the applicants’ application for stay of execution an abuse of the court process for the following reasons: i) In all previous court proceedings between her and the interested party, her position was that the applicants knew about the suit/were represented by the interested party who is their relative, a position sanctioned by the trial court; ii) The instant application is a late attempt to stop an eviction that has already been sanctioned by the court. iii) The instant application is a “red herring” intended to further delay the respondent from occupying the suit land. 13. Based on the decision in the case of Muchanga Investments Ltd-Vs-Safaris Unlimited (Africa) Ltd & NYAHURURU ELCA NO. 15 OF 2026 - RULING 7|Page

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2 Others, Civil Appeal No. 25 of 2002 (2009) eKLR, where the Court of Appeal described abuse of process as circumstances where judicial machinery is used improperly, including proceedings that are “frivolous, vexatious and oppressive”, the respondent submits that the current proceedings are being used for a purpose other than the legitimate resolution of the dispute hence there is no proper basis for staying execution. 14. Terming the applicants latecomers who were not parties to the original suit, the respondent maintains that the applicants are using the court process to delay enforcement of an existing judgment. 15. I have carefully read and considered the application by the applicant, the response thereto and the submissions by the parties in respect of their respective cases. 16. From the averments in the affidavits sworn in support of the application and the affidavit in opposition to the application, it is common ground that the applicants were not parties to the suit in which the judgment and decree issued against them was made. NYAHURURU ELCA NO. 15 OF 2026 - RULING 8|Page

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17. To inform myself of the kind of suit the respondent presented before the lower court, I have perused the pleadings filed in the lower court and noted that, whilst the respondent sought orders which extended beyond the defendant, she did not make the applicants parties to the suit. That notwithstanding, the Court in its judgment issued orders that adversely affected the applicants despite the fact that they were not parties to the suit. 18. The defendant in that suit, who is named as the interested party in the instant application, filed an appeal to this court, differently constituted, in which he inter alia argued that the learned trial magistrate erred by issuing orders against persons who were not parties to the suit. 19. I note that this court in its judgment addressed the issue albeit implicitly by upholding the entire judgment of the lower court. 20. I also note from the judgment of this court in respect of the interested party’s appeal, that it made observations NYAHURURU ELCA NO. 15 OF 2026 - RULING 9|Page

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that have a bearing on the application before me, to wit, observation that the interested party had filed a separate claim for adverse possession of the suit property and obtained a favourable judgment in Nyandarua ELCOS No.23 of 2023-Daniel Njuguna Kiritu vs Charity Gathoni Muturi. This Court also found as a fact that the interested party’s father paid the purchase price for the suit property in full. 21. These findings/observations, in my view have a bearing or effect on the respondent’s right to enforce the judgment and decree issued in her favour, as it appears that there are two conflicting decisions by courts in respect of the suit property. One upholding the respondent’s entitlement to the suit property and another one determining that the interested party is entitled to the suit property on account of having been in adverse possession thereof. 22. Allowing eviction of the applicants in the circumstances, and taking into account that the applicants were not parties to the suit in which the orders sought to be NYAHURURU ELCA NO. 15 OF 2026 - RULING 10 | P a g e

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enforced against them were issued before the applicants’ appeal is heard and determined, may occasion the applicants irreparable loss. This is so because if the applicants are evicted from the suit property before their appeal is heard and determined, the respondent may deal with the suit property in a way or in ways adverse to their interest therein. 23. Taking into account the peculiar circumstances of this case, I do not consider the delay in filing the instant application to be so inordinate as to form a basis of denying the applicants the orders sought. 24. In balancing between the interests of the applicants and the respondent, it is the considered view of this court that whilst the applicants stand to suffer irreparable injury if the orders sought are denied, the prejudice, if any, to be occasioned to the respondent if the application is allowed is compensable by way of costs. The prejudice is also capable of being addressed or minimized by giving priority to hearing and determination of the intended appeal. NYAHURURU ELCA NO. 15 OF 2026 - RULING 11 | P a g e

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25. The upshot of the foregoing is that I find the applicants’ application dated 9th June 2026 to be merited and allow it in terms of prayer 5 and 6 on condition that the applicants shall within 30 days from the date of delivery of this ruling deposit in a joint interest earning bank account to be opened in the names of the advocate for the applicants and the advocate for the respondent, Kshs. 100,000/being security for performance of such decree as may ultimately be binding on them. 26. For purposes of fast-tracking the hearing and determination of the appeal, I direct the applicant, with the help of the Deputy Registrar of this Court, to ensure that their appeal is processed, heard and determined with 180 days (6 months) from the date of this ruling failing which, unless the time herein given is, for good reason, extended by the court, the appeal shall stand automatically dismissed with costs to the respondent. 27. The costs of the application shall abide the outcome of the appeal. 28. Orders accordingly. NYAHURURU ELCA NO. 15 OF 2026 - RULING 12 | P a g e

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Ruling dated, signed and delivered at Nyahururu this 28th day of September, 2026 through Microsoft teams ................................. L. N. WAITHAKA JUDGE In the presence of:Mr Waichungo for the Applicant/Appellant Ms. Njoroge for the Respondent Court Assistant: Bedan NYAHURURU ELCA NO. 15 OF 2026 - RULING 13 | P a g e

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