SOLOMON NDUGI KIRITU VS GEORGE MITHAMO GITHAE AND DICKSEN MWANIKI GITHAE AND 1 Others

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NYERI

ENVIRONMENT AND LAND CASE APPEAL NO.E032 OF 2024

SOLOMON NDUGI KIRITU…………………………………….APPELLANT

VERSUS

GEORGE MITHAMO GITHATE

DICKSEN MWANIKI GITHAE

COUNTY GOVERNMENT OF NYERI ……………………RESPONDENTS

R U L I N G

1. In this case the Appellant was dissatisfied with the Judgment of the Honourable E. Kanyiri, Principal Magistrate delivered on the 23.9.2024 in Karatina PMC ELC No.E015 of 2021.  The said suit dated 1.7.2021 and filed on the 8.7.2021 was for the following orders  –
2. A permanent injunction restraining the Defendants’ entry by themselves their servants, agents and/or any other person claiming under them from interfering with the original common boundary between Plot 66 and 19 Gitunduti Shopping Center. 
3. That the 3^rd Defendant do reinstate and maintain the original boundary between Plots 66 and 19 Gitundunti Market as per the original map.
4. General damages
5. Cost
6. Any other relief that the Honourable Court may deem fit to grant.
7. On the 23.9.2024 the court dismissed the Plaintiff’s case with costs to the Defendants.  On 8.10.2024, the Plaintiff, now the Appellant, moved this court with an Application dated 4.10.2024 for an order that –

This court be pleased to grant a stay of execution of the Judgment/Decree in Karatina PMC ELC Court No.E015 of 2021 dated 23.9.2024 and all consequential orders pending the hearing and determination of the Appeal filed herein and that in the alternative, the Status Quo in respect of Plot No.66 Gitunduti Market be maintained pending the hearing and determination of the Appeal. 

1. The grounds supporting the said Application both on the face of the Application and in the Supporting Affidavit sworn on 4.10.2024 are that the Applicants unsuccessfully sued the Respondents urging the lower court to restrain them from interfering with Plot No.66 Gatunduti market. 
2. Further, the Applicant is in exclusive occupation and possession of the suit land to the exclusion of the Respondent and is now in danger of being evicted therefrom and that the Appeal has high chances of success.  But the Respondents will not suffer any prejudice should the orders sought be granted but should the Appellant be evicted from the land he would suffer irreparably and his Appeal rendered nugatory. 
3. However, the Appellant does not specify what specific loss he would suffer should the stay not be granted by the court.  He therefore requests that the orders of stay sought be granted and the Status Quo obtaining as at the time of filing the suit in the lower court be maintained pending the hearing and determination of this Appeal.
4. On their part, the Respondents, through the 1^st Respondent, George Mithamo Githae swore a Replying Affidavit on 16.11.2024 deponing that the Application by the Appellant lacks merit.  He deponed that the lower court found that there was no common boundary between the Appellant and the first 2 Respondents and there would not be any threat of eviction after the impugned Judgment nor did the Appellant attach to his Application aforesaid any Decree or order in the manner of eviction to justify his Application for stay of execution.  
5. He finally but wrongly depones that the Application before court is incompetent and the same ought to have been made in the lower court in the first instance according to Order 42 Rule (1).  He therefore prays that the Applicant’s Application dated 4.10.2024 be dismissed with costs. 
6. I find no merit in the Application by the Appellant since it is clear that the same is a boundary dispute and should the Appellant succeed on Appeal then the said boundary can be re-aligned.  The Application dated 4.10.2024 is disallowed. Costs in the cause.

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

MUGO KAMAU

JUDGE