REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELCA NO E012 OF 2026
MILLIAMU NYAKIRAGU MACHARIA................................APPELLANT
VERSUS
EDWARD MACHARIA KARIUKI...............................1ST RESPONDENT
JOSEPH KANYUKII KAIRU..........................................2ND RESPONDENT
RULING:
The Appellant vide Application dated 15/4/2026 seeks an order of this Court that: -
1. Pending the Hearing and determination of this Appeal, a temporary order of Injunction do issue restraining the 2nd Respondent from entering, fencing off, damaging crops, and structures, ploughing on, evicting and/or in any other way interfering with the parcel of land L.R No. NYANDARUA /ORAIMUTIA/3163, a sub-division of L.R No. NYANDARUA/ ORAIMUITIA/746.
2. Pending the determination of this Appeal, there be a stay of execution of the Judgment delivered on 1/4/2016 in Ol kalou Senior Principal Magistrate’s Court ELC case No. E015 OF 2025.
3. The OCS Ol-joro-orok Police Station do ensure that the orders issued herein are complied with.
The grounds upon which the Application is made are that: -
a. The Appellant is the lawful wife of the late 1st Respondent the two
having married in 1971 under Kikuyu customary laws and that their marriage was blessed with 6 children though one is now deceased.
b. The two established their matrimonial home at the 1st Respondent’s home on what was originally L.R No. NYANDARUA/ORAIMUTIA/189 registered in his father’s name, Benson Kariuki Njoroge who is now deceased.
c. The 2 were allocated a portion of 3.64 Hectares and the 1st Respondent issued with a Title Deed for NYANDARUA/ ORAIMUTIA/746 on 23/11/1998.
d. The Appellant registered a caution over the parcel of land due to the 1st Respondent’s alcoholism which made him always advertise the land for sale following which the 2nd Respondent bought a portion thereof of 1.5 Acres during the subsistence of the caution which was transferred to him.
e. No actual sub-division was done on the ground.
f. The Applicant was not aware when the Judgment was delivered.
g. The land was being paid for in drinking joints, bars and that the 1st Respondent was tricked to execute documents and acknowledge receipt of the purchase price.
The 1st Respondent filed a Replying Affidavit sworn on 30/4/2016 deponing that the Application is incompetent, bad in law, fatally defective and a waste of precious judicial time and should be dismissed at the earliest opportunity with costs. He depones that the Application does not meet the threshold in Giella -vs- Cassman Brown. He says that the land in question is not matrimonial but was bequeathed to him and his brother by his father. He denies to have been misled by the 2nd Respondent into selling the land to him, he has absolute rights over the land, the same being not matrimonial and that the Applicant has not shown what injury she stands to suffer if the orders she seeks are not granted.
The said Respondent in his Affidavit in Reply sworn on 30/4/2026 depones that he bought the suit land from the 1st Respondent for a consideration after having applied due diligence and established that the land belonged to the 1st Respondent. He also echoes the Replying affidavit of the 1st Respondent almost to the letter.
In the Supplementary Affidavit sworn on 5/5/2026, with leave of Court granted on the same day the Affidavit was made, the Applicant/Appellant says that it is true the 2nd Respondent is in possession of 1.5 Acres land but that the same is under the cultivation of her son, Alex Mwaura.
I am surprised that in both the Affidavit and Submissions in relation to the current Applications the parties are arguing the Appeal and not an Application of stay of execution and/or injunction.
I have not been shown what the Applicant would suffer should the Application sought not be granted and I am not able to fill the gaps. I therefore disallow the Application dated 15/4/2026 with costs.
Ruling dated and delivered at Nyandarua this 17th Day of June, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson
Appellant’s Counsel: Mr. Waichungo.
Defendant’s Counsel: Ms. Mureithi.
| 2 |