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JudgmentLUCY MUTHONI MAINA VS JANEFAR MUMBUA MUSYOKI5 min read

LUCY MUTHONI MAINA VS JANEFAR MUMBUA MUSYOKI

Environment and Land Court at Nyeri Environment and Land Court · · MUGO KAMAU, J

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NYERI

ENVIRONMENT AND LAND CASE APPEAL NO.E033 OF 2022

LUCY MUTHONI MAINA ………………………………………..APPELLANT

VERSUS

JANEFAR MUMBUA MUSYOKI……………………………..RESPONDENT

R U L I N G

  1. Judgment in the Lower Court was delivered on 28.11.2022 in the following terms –
  2. That the Defendant herein is the rightful owner of Ruguru/Kartuhi/2232; and
  3. That the Plaintiff’s suit herein is dismissed with costs to the Defendant. 
  4. The Appellant had filed  suit on the 16.2.2022 for the following orders –
  5. A declaration that the Defendant is a trespasser on the Plaintiff’s land Parcel (Number) Ruguru/Karuthi/2232;
  6. A permanent injunction retraining the Defendant from entering, trespassing, constructing and or in any other way interfering with the Plaintiff’s ownership right in Ruguru/Karuthi/2232;
  7. An order that the Defendant demolish and/or remove all illegal structures erected on Ruguru/Karuthi/2232 and in default she be evicted therefrom;
  8. General damages for trespass and occasioning loss, damage and wasting of Ruguru/Karuthi/2232; and
  9. Cost of this suit. 
  10. Being aggrieved by the said Ruling the Appellant filed an Appeal in this court vide Memorandum of Appeal dated 30.11.2022 and filed in court on 7.12.2022 urging this court to set aside the said judgment.  The Appeal was successful and was delivered on 15.5.2025 which the court made the following orders –
  11. The Judgment of the Lower court as delivered on 28th November, 2022 is hereby set aside and substituted with an order allowing the Appellant’s case as pleaded against the Respondent.
  12. The Appellant is hereby awarded General damages for trespass in the sum of Kshs.300,000=.
  13. The Appellant is hereby awarded the costs of this appeal and the Court below. 
  14. Thereafter the Respondent filed a Notice of Appeal on 20.5.2025 the same dated the 16.5.2025 notifying the court that she intends to file a second appeal against the whole judgment. 
  15. Thereafter she filed an undated Notice of Motion which was then amended on 23.6.2025 in which she seeks for orders that this court be pleased to grant a stay of execution of the Judgment delivered on 15.5.2025 by the Honourable Mr. Justice Olola in this case pending the hearing and determination of the Appellant’s intended Appeal in the Court of Appeal. 
  16. As grounds of his Application both on the face of her Application and in the attached “Amended” Supporting Affidavit, the Respondent says that the intended appeal reveals arguable and weighty legal and factual issues with high chances of success.  She stated that her Application was brought without inordinate delay and in good faith.  She is also willing to and ready to comply with any reasonable conditions that this court may impose for the grant of the stay of execution, if the same is granted.
  17. Without indicating what the risk is all about, the Respondent depones that unless the requested for orders are granted, there is a real risk that execution may proceed and that she would suffer substantial loss and prejudice and the Appeal would be rendered nugatory. 
  18. In the grounds of opposition dated 24.6.2025, the Appellant herein states that the Application dated 23.6.2025 is incompetent and misconceived and that the Motion was made without leave of court.  She also says that the Applicant has a similar Application dated 5.6.2025 which was scheduled for hearing on 25.6.2025.  She further states that the Respondent has not demonstrated that she has an arguable Appeal with high chances of success or at all since there is no draft Memorandum of Appeal attached to her Application and that the Notice of Appeal was filed even before the impugned Judgment was delivered, 3 days earlier. 
  19. She finally says that the Application offends the condition under Order 42 Rule 2 of the Civil Procedure Rules in that the Applicant does not show the substantial loss she stands to suffer if the stay is not granted and that she has not offered any security for costs. 
  20. Without substantiating, she sums up the Grounds of Opposition by saying that the Application is fatally defective and an abuse of the court process and that the same should be struck out with costs.
  21. The initial Application is undated and I am unable to trace the stamped copy.  It is therefore difficult to tell whether the same was filed before judgment was delivered.  But although the Amended one was filed without leave, the same is dated 23.6.2025. 
  22. Secondly, the Respondent in her Grounds of Opposition claims that the Applicant has not given any security for cost before filing the current Application.  This is putting the cart before the horse, so to speak.  You only do so when allowed by the court so that there is clarity as to what the security of costs is.  It is also not a requirement to show the court that she has arguable Appeal with a high probability of success. 
  23. All that she has to show is that should the stay of execution be denied the Appeal, if successful, would be rendered nugatory which she has also failed to do.  Attaching a draft Memorandum of Appeal is accordingly unnecessary. 
  24. The Decree sought to be stayed is mainly a monetary on General Damages of Kshs.300,000= for trespass and costs which is also monetary.  Should the Appeal succeed, the Applicant will not have suffered any loss incapable of being reminded.  She has not shown that the Respondent is not able to refund the money to her.
  25. Accordingly, the argument of the Appeal being rendered nugatory if she is not granted a stay of execution does not hold. 
  26. And since the Applicant has shown good faith by committing herself to abide by the conditions given by the court, I will therefore allow the stay of execution on the following conditions –
  27. That the Applicant pays to the Respondent the sum of Kshs.100,000= as part of the Decretal Amount within the next 120 days from the date hereof.
  28. That the Applicant pays Kshs.50,000= to the Respondent’s Advocate as part of the latter’s cost to be paid directly to him within the next 90 days from the date hereof.
  29. In default of either/or both the above conditions on the due date execution to issue. 

Those are the orders of the court.

Dated, Signed and Delivered at Nyeri this 11th day of July, 2025

MUGO KAMAU

JUDGE

    LUCY MUTHONI MAINA VS JANEFAR MUMBUA MUSYOKI LUCY MUTHONI MAINA VS JANEFAR MUMBUA MUSYOKI