Wachira v Weru & 3 others (Civil Appeal (Application) E148 of 2023) [2026] KECA 122 (KLR) (30 January 2026) (Ruling)

Wachira v Weru & 3 others (Civil Appeal (Application) E148 of 2023) [2026] KECA 122 (KLR) (30 January 2026) (Ruling) Neutral citation: [2026] KECA 122 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E148 of 2023 S ole Kantai, A Ali-Aroni & LA Achode, JJA January 30, 2026 Between James Kaburu Wachira Applicant and Houston Muchiri Weru 1st Respondent David Mundia Muchugu 2nd Respondent The Land Registrar Nyeri 3rd Respondent Honourable Attorney General 4th Respondent (An application for injunction pending the determination of the appeal against the Judgment of the Environment and Land Court at Nyeri (Olola, J.) delivered on 16{{^th}} June, 2023 in E.L.C. No. E004 of 2023.) Ruling 1.The applicant, James Kaburu Wachira filed suit against the respondents in Environment and Land Court (ELC) Case No. E004 of 2023 and the suit was dismissed by Olola, J. in a judgment delivered on 16th June, 2023. 2.By a Motion brought under provisions of ELC and Civil Procedure Rules (which have no application to rules of this Court at all) we are asked in relevant part to grant an injunction against the respondents and their agents barring them from dealing with a parcel of land LR No. Iriaini/Gatundu/104 pending hearing and determination of the application and of an intended appeal. 3.We shall deal with the application as if it was brought pursuant to rule 5 (2)(b) of the Court of Appeal Rules. 4.In grounds in support of the application and in a supporting affidavit by the applicant it is stated amongst other things that if the application is not allowed the applicant will suffer irreparable loss as the respondents may deal with the suit property as they deem fit including disposing, charging or evicting him which would leave him homeless and interfere with the substratum of the appeal; that the respondents will not suffer loss if the application is allowed; that he is in occupation of L.R No. Iriaini/Gatundu/104 subdivided into Iriani/Gatundu/1870, 1871 and 1872; that he has already filed an appeal. Further, that LR No. Iriaini/Gatundu/104 was registered in the names of his grandmother and that of his father and that he is in possession of the original title; that he has never filed succession proceedings; that in the year 2020 the respondents approached him with title Nos. Iriaini/Gatundu/1870 and 1872 and requested him to sell the lands to them (those were subdivisions of Iriaini/Gatundu/104); that he suspected fraud as he had neither sold nor had he transferred land to them; the respondents have entered the land and have constructed a permanent house and he is apprehensive that they may transfer land(s) to the other parties. 5.The 1st respondent Houston Muchiri Weru on his own behalf and on behalf of the 2nd respondent David Mundia Muchugu in a replying affidavit says that there is a similar application Civil Appeal (Application) No. E128 of 2023 (we were informed that that application had since been withdrawn); that the application is bad in law for being brought under the wrong provisions; that the applicant has not demonstrated that he has an arguable appeal which would be rendered nugatory without stay; that an application for injunction had been dismissed by ELC; that Iriaini/Gatundu/104 was never the suit property as it had been subdivided to create Iriaini/ Gatundu/1870 and 1871; that the application has no merit. 6.There is a Notice of Appeal “…against the said judgment dismissing with costs his case with costs” and there is a Memorandum of Appeal where nine grounds of appeal are set out. 7.When the Motion came up for hearing before us on 30th June, 2025 learned counsel Mr. Nyathi appeared for the applicant while learned counsel Miss Mwai appeared for the 1st and 2nd respondents. We were informed that the 3rd and 4th respondents had not participated at all at ELC. 8.Both sides had filed written submissions which they fully relied on and which we have seen and considered. 9.For an applicant to succeed in an application for stay of execution pending appeal or for an injunction he must firstly show that the appeal or intended appeal, as the case may be, is arguable which is the same as saying that the same is not frivolous. Such an applicant must in addition show that the appeal would be rendered nugatory absent stay. 10.It appears uncontested that title to L.R. No. Iriaini/Gatundu/104 does not exist it having been closed and subsequent titles including Iriaini/Gatundu/1870, 1871 and 1872 having been issued after that original title had been subdivided. It is difficult to see how the intended appeal would be arguable when, as it were, the horse bolted after that original title was closed. In any event we note that the Judge dismissed the applicant’s suit thus making a negative order not capable of execution. This Court had this to say in similar circumstances in Mbaruk vs. Mwasi & 6 Others (Civil Application E006 of 2020) [2022] KECA 520 (KLR) (6 May 2022) (Ruling); 11.In response to that challenge, we shall rely and adopt this Court’s ruling in the case of County Secretary of Kajiado & 47 others v Salaries & Remuneration Commission & another [2021] eKLR where the Court observed:“In addition, in Daniel Lomagul Kandei & 2 Others v. Kamanga Holdings Limited & 40 Others (2017) eKLR this Court expressed itself as follows:-“In the motion before us the applicants sought a stay of the striking out of the O.S. This was a negative order which, by parity of a long line of decisions of this court as demonstrated above, is incapable of being stayed.” 12.Having found that the intended appeal is not arguable we need not consider the other limb relevant to an application of this nature. 13.We find the Motion to have no merit and dismiss it with costs to the 1st and 2nd respondents. **DATED AND DELIVERED IN NYERI THIS 30 TH DAY OF JANUARY, 2026.****S. ole KANTAI****JUDGE OF APPEAL****.......................................****ALI-ARONI****JUDGE OF APPEAL****.......................................****L. ACHODE****JUDGE OF APPEAL** I certify that this is a True copy of the originalSigned**DEPUTY REGISTRAR**