Chege & another v Mwangi & another (Civil Appeal (Application) E118 of 2024) [2025] KECA 2142 (KLR) (28 November 2025) (Ruling)

Chege & another v Mwangi & another (Civil Appeal (Application) E118 of 2024) [2025] KECA 2142 (KLR) (28 November 2025) (Ruling) Neutral citation: [2025] KECA 2142 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E118 of 2024 S ole Kantai, JW Lessit & A Ali-Aroni, JJA November 28, 2025 Between Virginiah Njeri Chege 1st Appellant Samuel Irungu Chege 2nd Appellant and Millicent Ruguru Mwangi 1st Respondent Samson Irungu Mwangi 2nd Respondent (Being an Application for stay of the Orders of the Environment and Land Court at Murang’a (Gacheru, J.) delivered on 13th July 2023 in ELC No. E014 of 2022 [Environment & Land Case E014 of 2022](https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18660/eng@2023-07-13) ) Ruling 1.Before the Court is an application by way of a notice of motion dated 27th November 2024, brought under rules 5 (2) (b) and 42 of the Court of Appeal Rules 2022 and the [Appellate Jurisdiction Act](/akn/ke/act/1977/15), seeking a stay of execution of the orders of the Environment and Land Court at Muranga, pending the hearing and determination of the appeal. 2.The application is based on the grounds outlined in the motion and reiterated in the supporting affidavit of the 2nd applicant, Samuel Irungu Chege, sworn on 27th November 2024, where he states that he was dissatisfied with the cession of the trial court and has thus started the process of an appeal; he faces potential loss, as he may be evicted from the suit property, which is vital for his livelihood; if execution proceeds the intended appeal will be rendered nugatory, and the suit property may be sold, alienated, or otherwise disposed of before the appeal is resolved; additionally he has received a notice of taxation and is concerned about imminent eviction; the appeal has merit and a high chance of success; the applicant is ready to provide security or comply with any conditions for a stay as ordered by the court; the application has been made without undue delay; and it is in the interest of justice to grant a stay of execution pending the determination of the appeal. 3.In response, the respondents have filed a joint replying affidavit sworn on 11th March 2025, arguing that the application is frivolous, vexatious, incompetent, and filled with deliberate deceit and half-truths; the impugned decision was delivered on 13th July 2023, rendering the application late and an afterthought; the nature of the claim before the Murang'a ELC Court was declaratory, meaning no positive orders were issued that could warrant a stay; the respondents, are the widow and son of the late Stephen Mwangi, alias Mwangi Samson (deceased); Stephen Mwangi is the legally registered owner of land parcel number Loc 8/Kagaa/336, which constitutes the respondents' family land where they reside; the applicants have falsely claimed ownership of the suit property, asserting it belonged to Samson Kamara Mwangi, the deceased father of Stephen Mwangi; that this claim was rejected by the Murang'a ELC High Court; and the applicants are acting frivolously, fully aware that they have no legal right or interest in the suit property; there is pending Murang'a Chief Magistrate's Succession Cause No. E151 of 2022 concerning the estate of Stephen Mwangi Kamara; the applicants are using this appeal to obstruct the hearing of the aforementioned cause; the applicants are not being sincere and are attempting to mislead the Court by deliberately failing to disclose the two succession causes mentioned; the applicants have never lived on or settled in the suit land; the applicants are attempting to trespass onto the land to assert an unfounded claim following the death of the deceased owner. 4.The 2nd applicant filed a further affidavit sworn on 17th March 2025, in response to the respondents’ affidavit, wherein he acknowledges the filing of a succession cause for the late Samson Kamara Mwangi, being Chief Magistrate's Succession Cause No. E405 of 2023, which was necessary because they failed to include Loc 8/Kagaa/336 in the previous case, which had already been addressed in Chief Magistrate's Succession No. E151 of 2022, filed by the respondents on 15th March 2022, states that the land parcels, Loc 8/Ngerere/271 and Loc 8/Kagaa/336, belonged to the late grandfather of the 2nd applicant, Samson Kamara Mwangi. Loc 8/Ngerere/271 was registered under Kamara Mwangi, while Loc 8/Kagaa/336 was registered under Mwangi Samson; further, when they filed Murang'a Chief Magistrate's Succession Cause No. E405 of 2023, the respondents refused to sign the petition. As a result, the applicants had to initiate a citation, which was allowed and later confirmed on 18th February 2025. The name "Mwangi" refers to Samson Kamara Mwangi’s father; hence, the property should be shared equally between the families of Stephen Mwangi Kamara and Nahashon Chege Kamara. At no time was his uncle, Stephen Mwangi Kamara, referred to as Samson. 5.Learned counsel for the applicants filed submissions dated 17th March 2025, where he submitted that the purpose of a stay of execution pending appeal is to preserve the subject matter of the dispute to safeguard the appellants’ interest pending determination of the appeal. He referred to the case of RWW v. EKW [2019] eKLR, where the Court noted that granting or denying an application for a stay of execution pending appeal is at the Court's discretion. However, the Court must balance the interests of both the appellant and the respondent when granting a stay. 6.Counsel further asserted that there is a need to preserve the suit property as the respondents are proceeding with the succession cause of the late Steven Mwangi Kamara, where they have included the suit properties as part of the estate, even though the green card indicates that the owner is Mwangi Samson, who was also known as Samson Kamara Mwangi; there are photographs produced during the trial, showing that the applicants have been utilising and occupying half share of the suit property since the year 1960, and there is a clear boundary separating the two halves; the 1st applicant was placed on the land by his father-in-law and has been living on the suit property with no interruption or disturbance. To avoid damage, waste, and alienation of the property, the applicants pray for the grant of the prayers sought. 7.In opposition, learned counsel for the respondents filed submissions dated 20th March 2025. He rehashed the contents of the replying affidavit. He further argued that the applicants filed this application belatedly, after one and a half years, making it an afterthought; therefore, the prayers are undeserved. He asserted that the trial court did not issue any positive order warranting stay orders; further, the prayer for the status quo is misplaced, and the prayers sought are incompetent and misconceived. 8.Learned counsel contended further that the deceased was a brother of Steven Mwangi Kamara. Their father was Samson Mwangi Kamara, who owned land parcel number Loc 5/Ngerere/271, which served as both the family's and ancestral land. The 1st applicant, in recognition of the above fact, fully prosecuted the Murang'a Succession Cause No. E405 of 2023 - Estate of Samson Kamara Mwangi – deceased, where the 1st applicant was the petitioner and the only estate property listed was Loc 8/ Ngerere/271. The applicants are aware that this is the only asset owned by Samson Kamara Mwangi, as family and ancestral land, and they are thus insincere in both this application and the matter before the trial court. 9.To succeed in an application under rule 5 (2)(b) of the Court of Appeal Rules, an applicant has to satisfy the twin principles that are enumerated in many decisions of this Court, namely:i.An applicant must demonstrate that they have an arguable appeal; andii.That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree or order of proceedings is not stayed. 10.On satisfaction of both principles, this Court held in David Morton Silversein vs. Atsango Chesoni [2002] eKLR, that for an order of stay to issue, the applicant must first demonstrate that the appeal or intended appeal is arguable, that is, it is not frivolous and that the appeal or intended appeal, would in the absence of stay, be rendered nugatory. 11.In the draft memorandum of appeal, the appellants have listed several grounds including; that the learned Judge erred in law and fact in finding that the respondent bought the suit property from one Kanyi Gitu in 1962 while the said property was first registered on 4th of March 1960 in the name of Mwangi Samson; by failing to consider the appellants’ evidence that the name Samson belonged to the 1st appellant’s father-in-law. We do not think the said grounds are frivolous. As previously stated by this Court in Yellow Horse Inns Ltd vs. A. A. Kawir Transporters & 4 Others [2014] eKLR, an applicant does not need to present multiple arguable points, as a single arguable point would suffice. Neither is the applicant required to show that the arguable point would succeed, as this Court held in Kenya Commercial Bank Limited vs. Nicholas Ombija [2009] eKLR. 12.An applicant has to succeed in demonstrating the twin principles. Though the applicant succeeded in one, he failed to demonstrate that the appeal would be rendered nugatory. The fact that the respondents have initiated the taxation process does not render the appeal nugatory; any sums paid out due to success in the High Court are recoverable. Secondly, the mere apprehension that the respondents will evict the applicants does not, in itself, render the appeal nugatory. In the often-cited case of Stanley Kangethe Kinyanjui vs. Tonny Keter & others [2013] eKLR, this Court summarised what should guide the court in considering this issue as follows:xii.The term ‘nugatory’ has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.xiii.Whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. 13.We also note that the ELC did not make any orders capable of being stayed; it simply declined to declare that the suit property belonged to Mwangi Samson alias Samson Kamara Mwangi. In Western College of Arts and Applied Sciences vs. Oranga & Others [1976] KLR 63, the court, whilst considering whether an order of stay can be granted in respect of a negative order, stated partly, which we agree with:“But what is there to be executed under the judgment, the subject of the intended appeal the High Court has merely dismissed the suit with costs. An execution can only be in respect of costs…The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgment for this court in an application for stay to enforce or restrain by injunction.” 14.In the end, we dismiss the application and order that the costs abide by the outcome of the appeal. **DATED AND DELIVERED AT NYERI THIS 28 TH DAY OF NOVEMBER, 2025.****S. OLE KANTAI****....................................****JUDGE OF APPEAL****J. LESIIT****....................................****JUDGE OF APPEAL****ALI-ARONI****....................................****JUDGE OF APPEAL** I certify that this is a true copy of the original.Signed**DEPUTY REGISTRAR**