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REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
MISC ELC NO E006 OF 2025
Formerly Nyahururu Misc E011 of 2025
AMOS MATHENGE NDUMIA ( suing as the legal Representative of the Estate of SIMON NDUMIA KIMENJU..............APPLICANT
VERSUS
JOHN KIBOI WAMBUGU........................................RESPONDENT
RULING
The Applicant’s Motion dated 27/5/2025 filed in Nyahururu ELC Miscellaneous Application No. E010 of 2025 and later transferred to this Court as ELC Miscellaneous Application No. E006 OF 2025 seeks for orders that: -
1. This Court be pleased to grant leave to the Appellant to appeal out of time against the Ruling issued on 19/3/2021 on the Application seeking to review the Judgment and Decree of Hon Wanjala ( CM) delivered on 29/4/2020 in Nyahururu CMELC No. 27 of 2018.
2. The Court be pleased to grant leave to the firm of Kuria & Nyambane Advocates LLP to come on record for the Applicant, post-Judgment in accordance with Order 9 Rule 9 of the Civil Procedure Rules, which prayer I had already granted.
3. An Order of stay of execution of the Judgment and all consequential orders, including the warrants of arrest issued in respect of costs pending hearing and determination of the intended Appeal.
The Applicant grounded his Application on the fact that the Applicant sought review of Judgment and orders delivered on 29/4/2020 in CMELC No. 27 of 2018 where the Court issued a mandatory Injunction Order compelling the Applicant to vacate the Respondent’s land parcel L.R No. NYANDARUA/MBUYU/967 and in default eviction Orders to issue and that the intended appeal is meritorious, arguable and not frivolous and the delay is reasonably explained, occasioned by the fact that the Applicant together with the family have since fallen into extreme poverty and destitution following eviction from their home and the burning of their homestead leaving him and his family homeless and that if stay of execution is not granted, the appeal could be rendered nugatory.
Equally, the Applicant is willing to comply with any conditions the Court may impose and that no substantial prejudice will be occasioned to the Respondent if stay is granted. Warrants of arrest have already been issued for costs and that this Court has jurisdiction to lift the warrant of arrest. He also avers that the intended Appeal is arguable and meritorious and not frivolous and that the delay in filing the Appeal was caused by poverty.
On his part, the Respondent filed a Replying Affidavit on 30/6/2025. The same was sworn on 30/6/2025 in which he depones that the Application is incompetent, an abuse of the Court process and that the same ought to be struck out with costs at the earliest opportune time possible. He says that he (the Respondent) had on 21/2/2024 sought for an order that Amos Mathenge Ndumia do substitute his mother, Lydia Wanjugu Ndumia in Nyahururu ELC No. 27 of 2018 which Orders were set aside on 2/5/2025 after an Application dated 12/8/2024 filed by the Applicant. He further holds that the Judgment he obtained by himself has been executed and the Deceased Defendant evicted from the suit land and that there is therefore nothing to stay. The delay is more than 5 years and unexplained. He also says that the intended Appeal is to be filed by one who has no locus.
I would agree with the Respondent that to apply for stay of execution of an Order or Decree issued 5 years ago and also seeking for an Order of this Court to Appeal out of time would be asking for too much.
The Respondent has been assuming that the Applicant was content with the Judgment of the Court. The delay is actually too inordinate. Secondly, the Respondent has deponed that the Applicants father was evicted from the suit land. Having started enjoying the fruits of his Judgment, it would be unconscionable to reverse such gains. Stay of execution is a discretionary Order but the same shall be granted judiciously. This is not one of such cases. I did not find any merit in the explanation that failure to appeal within time was caused by the impecunious nature of the intended Appellant since even without money, one can seek to approach the Court as a pauper. I therefore dismiss the Applicant’s Application dated 27/5/2025 but spare the Applicant the costs of the suit.
Ruling Read and Delivered in Nyandarua this 19th Day of November 2025.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
Mr. Omondi for the Plaintiff.
Mr. N/A for the Defendant.