REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELCA NO 17 OF 2023
PETER KANIA MACHARIA.............................................APPELLANT
VERSUS
MARGARET KARIUKI.....................................................1 ST RESPONDENT
PETER NJOROGE...........................................................2 ND RESPONDENT
RULING
In the stay of execution Application dated 7/5/2026, first the firm of Nyawira Mureithi & Co Advocates seeks for leave to act for the Defendants/Applicants herein and secondly, that this Court do issue an order staying the execution of the Judgment of this Court read on 30/4/2026 pending hearing and determination of the Appeal lodged. The import of the said Judgment was to allow the Applicants’ parcel of land L.R No. NYANDARUA/KARATI/2457 to be taken over by the Respondent which would result into eviction of the Applicant and that unless execution of the Judgment is stayed, the intended Appeal would be rendered nugatory
The Applicants are ready and willing to abide by any conditions imposed on the stay by this Court. A Notice of Appeal has already been filed dated 5/5/2026. The Judgment of 7/5/2026 upset the Nyahururu Senior Resident Magistrate’s Court’s Decision of Honourable S.N. Mwangi dated the 16/9/2022 in Nyahururu MCELC No. 306 of 2018. The firm of Nyawira Mureithi was allowed to come on record on 28/5/2026. The Appellant filed a Replying Affidavit sworn on 9/6/2026 opposing the Application for stay of execution. Peter Kaina Macharia deponed that the Application is incompetent, misconceived and bad in law solely aimed at delaying the enjoyment of the fruits of his successful litigation and which ought to be struck out forthwith. The same is incurably defective and an abuse of the Court process and that since the Applicant lacked legal capacity to file the original suit they equally lack capacity to prosecute an Application for stay of execution. He says that the balance of convenience tilts in favour of the Respondent.
I have considered the Application, the Replying Affidavit and Counsel’s submissions and wish to observe that the Respondent in the Application has mainly concentrated his response on the merit or otherwise of the Appeal which is not within my domain at all.
As to the Applicant’s Application, I do agree with the Applicant that should the subject matter of the suit be disposed of, it would cause complications later and especially if the Appellant succeeds on Appeal. But as to being evicted, the same can always be reversed should the Applicant be successful on Appeal. I therefore hereby order that the Title Deed to the suit property once transferred in the name of the Respondent should not change hands further until the Hearing and determination of the intended Appeal in the Court of Appeal. Further, the Appellant in this Appeal do vacate the suit premises within the next 90 days from the date hereof.
Ruling read , signed and delivered at Nyandarua this 29th Day of July, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson
Appellant’s Counsel: Ms. Mwikuyu.
Respondent’s Counsel: Ms. Nyawira Mureithi.
2
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELCA NO 17 OF 2023
PETER KANIA MACHARIA.............................................APPELLANT
VERSUS
MARGARET KARIUKI.....................................................1 ST RESPONDENT
PETER NJOROGE...........................................................2 ND RESPONDENT
RULING
In the stay of execution Application dated 7/5/2026, first the firm of Nyawira Mureithi & Co Advocates seeks for leave to act for the Defendants/Applicants herein and secondly, that this Court do issue an order staying the execution of the Judgment of this Court read on 30/4/2026 pending hearing and determination of the Appeal lodged. The import of the said Judgment was to allow the Applicants’ parcel of land L.R No. NYANDARUA/KARATI/2457 to be taken over by the Respondent which would result into eviction of the Applicant and that unless execution of the Judgment is stayed, the intended Appeal would be rendered nugatory
The Applicants are ready and willing to abide by any conditions imposed on the stay by this Court. A Notice of Appeal has already been filed dated 5/5/2026. The Judgment of 7/5/2026 upset the Nyahururu Senior Resident Magistrate’s Court’s Decision of Honourable S.N. Mwangi dated the 16/9/2022 in Nyahururu MCELC No. 306 of 2018. The firm of Nyawira Mureithi was allowed to come on record on 28/5/2026. The Appellant filed a Replying Affidavit sworn on 9/6/2026 opposing the Application for stay of execution. Peter Kaina Macharia deponed that the Application is incompetent, misconceived and bad in law solely aimed at delaying the enjoyment of the fruits of his successful litigation and which ought to be struck out forthwith. The same is incurably defective and an abuse of the Court process and that since the Applicant lacked legal capacity to file the original suit they equally lack capacity to prosecute an Application for stay of execution. He says that the balance of convenience tilts in favour of the Respondent.
I have considered the Application, the Replying Affidavit and Counsel’s submissions and wish to observe that the Respondent in the Application has mainly concentrated his response on the merit or otherwise of the Appeal which is not within my domain at all.
As to the Applicant’s Application, I do agree with the Applicant that should the subject matter of the suit be disposed of, it would cause complications later and especially if the Appellant succeeds on Appeal. But as to being evicted, the same can always be reversed should the Applicant be successful on Appeal. I therefore hereby order that the Title Deed to the suit property once transferred in the name of the Respondent should not change hands further until the Hearing and determination of the intended Appeal in the Court of Appeal. Further, the Appellant in this Appeal do vacate the suit premises within the next 90 days from the date hereof.
Ruling read , signed and delivered at Nyandarua this 29th Day of July, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson
Appellant’s Counsel: Ms. Mwikuyu.
Respondent’s Counsel: Ms. Nyawira Mureithi.
2