REPUBLIC OF KENYA
IN THE ENVCIRONMENT AND LAND COURT AT NYANDARUA
ELCA NO E020 OF 2025
GLADYS GATHONI NJOROGE..................................................APPELLANT.
VERSUS
PETER WACHIENI WACHIRA...........................................1ST RESPONDENT.
EDWARD MUGANE NJONJO.............................................2ND RESPONDENT.
RULING
The Appellant in his Application dated 30/3/2026 prays that this Court reviews and/or varies its orders made on 26/2/2026 requiring her to deposit a sum of Kshs. 150,000/- as security and that the same be stayed. As the grounds of the Application, the Appellant states both on grounds on the face of the Application and in the Supporting Affidavit that she partly complied with the Order of 26/2/2026 by duly depositing the original Title in Court on 9/3/2026 through her Advocates on record. But that she is financially incapable of raising the sum of Kshs. 150,000/- being an unemployed widow who is also ailing.
She deponed that her husband passed away on 15/10/2015 and that she has since been a dependant on a widow’s pension and she demonstrated this by attaching to her Affidavit a letter from the National Treasury and Planning where she currently receives only Kshs. 5,230.40 per month which is insufficient to meet her basic needs including food, shelter and medical expenses.
She also receives approximately Kshs. 9,000/- per month from rental
income left behind by her deceased husband and the two are the exclusive sources of livelihood for her. The 69 year old widow further deponed that she suffers from a serious neurological condition affecting both lower ribs which she demonstrates with an attached medical Report as a result of which she incurs substantial medical expenses. She is therefore unable to raise the substantial cost of deposit of Kshs. 150,000/-.
In the 1st Respondent’s Replying Affidavit sworn on the 22/4/2026, Peter Wachieni Wachira depones that the Appellant’s Application dated 30/3/2026 is bad in law, incompetent, lacks any foundation and is otherwise an abuse of the Court process. She says that the Applicant filed her Application outside the 30 days period she was given to fulfil the condition of the stay without any explanation for the inordinate delay and that she was aware of her medical condition at the time of the Court making the original order and that she has failed to demonstrate any unforeseen material change in circumstances since the Court issued the order of deposit of Kshs. 150,000/-. She has also failed to demonstrate her inability by way of showing Bank Statements and/or M-pesa statements as evidence of financial inability and hardship that would satisfy the varying of the Court conditions. He further depones that under order 42 Rule 6 of the Civil Procedure Rules furnishing of security in a stay order is a mandatory pre-requisite intended to protect the interests of the successful party and not something the Appellant can evade and that it cushions the Respondent for being unable to recover his costs.
He further depones that the Appellant has not been candid enough to
explain all her sources of income and whether she has children who are able. He therefore prays that the Application be dismissed with costs.
I have considered the Application herein, the response and respective Counsels’ submissions. The condition given to the stay of execution herein is as prescribed mandatorily under Order 42 Rule 6 of the Civil Procedure Rules. The Applicant has explained her position but the Respondents are equally entitled to feel concerned that should the Appellant not be successful in her Appeal, they would be left chasing her for their costs, both of the lower Court and that of this Appeal. However, if this Court were to be so hard or harsh on an Appellant who believes that he has an Appeal with chances of success even if an iota of the same, then this would deny him his constitutional right of Appeal. On the other hand, the rights of a Respondent who has been successful in the Court appealed from must also be taken into consideration.
The responsibility of the Court is to balance the two and the balancing act in this case dictates that the monetary condition be reduced by half and the Appellant be granted a further 45 days to raise the same. Costs of this Application in the cause.
Ruling read and delivered at Nyandarua this 1st Day of July 2026
MUGO KAMAU.
JUDGE.
In the Presence of: -
Court Assistant: Samson.
Appellant’s Counsel: Mr. Mwihia.
Respondent’s Counsel N/A.
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