REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELCA NO E004 OF 2026
JOSEPH MAINA MWANGI......................................................APPELLANT
VERSUS
ELIUD MAINA KAHENJO.....................................................RESPONDENT
RULING:
In the Application dated 10/3/2026 under certificate of urgency, the Appellant seeks for a stay of execution of the Judgment delivered on 12/2/2026 together with all the orders consequential thereto. The orders sought by the Respondent herein who was the Plaintiff in the suit case were: -
a. Immediate eviction of the Appellant herein from L.R No. NYANDARUA/OL-JORO-OROK WEST/6958 the suit land over which he claimed ownership.
b. The District Surveyor, Nyandarua do visit the suit land and establish the beacons.
c. General and exemplary Damages for fraudulent interest thereon at Court rates.
d. Costs of the suit and interest at Court rates.
On his part, the Appellant in an amended Statement of Defence and Amended Counter-claim dated 31/5/2024 prayed for:-
a) A declaration that the defendant to the Counterclaim is entitled to a portion of One (1) acre of land to be excised from L.R NO. NYANDARUA/ OLJOROOROK WEST /6958 and the land that is known as L.R NO. NYANDARUA/ OLJOROOROK WEST /6960 measuring approximately One (1) Acre.
b) An order do issue compelling the defendant in the Counterclaim to cause the subdivision and transfer to the plaintiff in the Counterclaim of a portion of One (1) acre of land with the graveyard site to be excised from L.R NO. NYANDARUA/ OLJOROOROK WEST/6958.
c) An order do issue compelling the defendant to handover the duly signed transfer forms, consent and all the requisite documents together with the original title deed for the suit parcel to enable transfer the same in favour of the plaintiff in the Counter claim.
d) That in default of clause (c) above that the executive office of the Court does execute the documents on behalf of the defendant and that the District Land Registrar Nyandarua County does dispense with the production of the original title deed for L.R NO. NYANDARUA/ OLJOROOROK WEST/6958 at the time of transfer and registration of the One (1) acre of land to the Plaintiff.
e) Costs of the suit and the Counter Claim plus interest.
f) Any other or further reliefs that this honorable court may deem fit and just to grant.
On the 12/2/2026, the Honourable John Wanyanya, the trial magistrate in Nyahururu C.M ELC No. E015 OF 2023 delivered a Judgment as follows:-
“..... I find that the Plaintiff (Respondent) has discharged his burden of proof that the Defendant (Applicant) breached their contract by denying him vacant possession and use of land he genuinely bought and registered. I proceed to allow his suit and dismiss the Counter-claim with costs to the Plaintiff .................. on compensation, the Plaintiff is entitled to damages on account of denial of possession and interference of enjoyment of proprietary rights............ trues pass is actionable and no proof of damage is necessary for the Court to award General Damages. I hereby award to the Plaintiff General damages of Ksh 500,000/=....”
He also proceeded to grant a 30 days’ stay of execution which has already lapsed.
The grounds upon which this Application is brought are that as the Appellant/Applicant is dissatisfied with the above Judgment and has filed an Appeal against it and the suit property NYANDARUA/OL-JORO-OROK is where his father is buried and where he has semi-permanent structures and also where the wife of the Applicant resides therefore if Judgment is executed, the Applicant’s father’s body will be exhumed by the Respondent and the Appellant’s wife will be rendered homeless and the Applicant would suffer substantial loss. He also swore in the Supporting Affidavit sworn on even date that it is in the best interest of justice that the orders sought be granted. In the Affidavit in reply sworn by the Respondent Eliud Mina Kihenyo on 19/5/2026, he deponed that the Appellant has not demonstrated what substantial loss he stands to suffer and that the Appellant had sold the suit property to him which he acknowledged but refused to give him vacant possession of the same and that the burial of the Appellant’s father on the suit land does not confer upon him proprietary interest over the land since he was aware of this when selling the land.
Having heard both parties through their Application and Replying Affidavit respectively, as well as the Appellant’s submissions I find that if the land in dispute keeps changing hands, it is likely that the same may end up being transferred to several generations of buyers and finally it becomes difficult to recover it. That is, should the Appellant succeed.
I also appreciate that the Appellant’s father is buried on the suit land and that his grave which among Africans should not be tampered with until the final Appeal is heard and determined. But this should not be used as a way of keeping the successful party away from his otherwise successful Decree. But in as far as the General Damages is concerned, I have not been shown that the Respondent is so impecunious that he is unable to refund the General Damages should he lose in the Appeal. Accordingly, I make the following orders.
i. The Respondent is at liberty to transfer the suit property L.R NYANDARUA/OL-JORO-OROK WEST/6958 to himself forthwith but the same should not be transferred or leased to any other person.
ii. That the Appellant vacates the suit property within the next 90 days from the date hereof.
iii. That the Respondent should not interfere with the Appellant’s father’s grave and MUST respect it.
iv. That the Appellant should pay to the Respondent half of Kshs. 150,000/- awarded as General Damages within the next 45 days and the other half within 45 days thereafter.
v. Costs in the cause.
Ruling dated, signed and delivered at Nyandarua this 16th Day of July, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
For the Plaintiff………….Gakenia Gicheru..
Defendants’ Counsel…….Mr. Mbugua.
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