Ikigu v Muchina (Sued on Behalf of Gitau Muchina) & another (Environment and Land Appeal E045 of 2025) [2025] KEELC 8090 (KLR) (21 November 2025) (Ruling)
Neutral citation:
[2025] KEELC 8090 (KLR)
Republic of Kenya
Environment and Land Appeal E045 of 2025
MAO Odeny, J
November 21, 2025
Between
Eunice Njeri Ikigu
Appellant
and
Margaret W Muchina (Sued on Behalf of Gitau Muchina)
1st Respondent
Mukinye Farmers Co-operative Society
2nd Respondent
Ruling
1.This ruling is in respect of the Appellant/Applicant’s Notice of Motion application dated 16th July, 2025, seeking the following orders:a.Spentb.Spentc.Spentd.That pending the hearing and determination of the appeal, this Honourable Court be pleased to stay execution of the ex-parte judgment delivered on 13th April 2022, and any consequential orders arising therefrom.e.That the costs of this application be provided for.
2.The application is supported by the annexed affidavit of Eunice Njeri Ikigu, the Appellant/Applicant sworn on 16th July, 2025, where she deponed that the trial court delivered a ruling on 8th July, 2025, declining to set aside the ex-parte judgment entered on 13th April, 2022, in CMELC No 157 of 2019. She stated that she has filed an appeal challenging the said ruling/order.
3.The Applicant further deponed that she is the legal and registered proprietor of Land Parcel No. Gilgil/karunga Block 5/228 and has been in continuous, peaceful occupation of the same for over two decades. The Applicant deponed that prior to her ownership in the year 2000, the property, which was registered in 1990, was previously owned by her parents. The Applicant further deponed that the 1st Respondent has never occupied the suit property and unless the orders of stay are granted, she will be unlawfully evicted causing irreparable harm and loss, further that the appeal would be rendered nugatory if execution proceeds.
4.Margaret W. Muchina, the 1st Respondent, filed a Replying Affidavit sworn on 9th September, 2025, and urged the court to hold that the Affidavit of Eunice Njeri Ikigu sworn on 16th July, 2025, in the United Kingdom is incompetent for lack of compliance with the mandatory provisions of Section 106 (B) of the Evidence Act (Cap 80, Laws of Kenya). She deponed that the Applicant has not satisfied the legal requirements for a grant of stay of execution of a judgment, which was delivered on 13th April, 2022, over three years ago. She urged the court to dismiss the application with costs.
Appellant/applicant’s Submissions
5.Mr. Cheruiyot, counsel for the Appellant filed submissions dated 15th September, 2025, and identified the following issues for determination:a.Whether the Supporting Affidavit should be struck out?b.Whether the Applicant has satisfied the threshold for grant of stay of execution?
6.On the first issue, counsel submitted that the Applicant upon filing the application subsequently filed a certificate dated 17th July, 2025 addressing all the issues raised by the 1st Respondent to technically defeat the application. On the question of the said certificate not being filed together with the application, counsel submitted that the omission squarely lies with counsel and the Applicant should not be punished for counsel’s inadvertence. Counsel submitted that the certificate has been filed and placed on record, and relied on Order 19 Rule 7 of the Civil Procedure Rules and the case of George Gabriel Kiguru & Another vs Republic [2022] KEHC 2650 (KLR).
7.On the second issue, counsel relied on provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules and submitted that if the ex-parte judgment is executed and the stay orders are not granted, her family will be evicted and there will be irreversible dispossession of her proprietary rights contrary to Article 40 of the Constitution of Kenya.
8.Counsel submitted that there is a likelihood of substantial loss and relied on the cases of RWW vs EKW [2019] KEHC 6523 (KLR) and Ellen Wangari Mburu vs Patrick Kinuthia Kiiga [2021] KEELC 735 (KLR). Counsel also relied on Article 50 (1) of the Constitution of Kenya and submitted that denial of the right to a fair hearing coupled with imminent eviction amounts to grave prejudice which cannot be compensated by damages.
9.On whether the application was filed without undue delay, counsel submitted that the ruling was delivered on 8th July, 2025, and the Appellant promptly filed the present application on 17th July, 2025. On security for the due performance of the decree, counsel submitted that the subject matter is land and the requirement for the Applicant to provide security for the due performance of the decree does not arise. Counsel submitted that land being a fixed and immovable asset will always be available for purposes of enforcing the decree.
10.It was counsel’s submission that the Applicant remains ready and willing to abide by such terms as this Honourable Court may deem just, including the provision of security and urged the court to allow the application as prayed.
1St Respondent’s Submissions
11.Mr. Karanja, counsel for the 1st Respondent submitted that judgment in this case was delivered on 13th April, 2022 and it is over three years and six months now and no appeal has been lodged or filed in this court against the said judgment. Counsel submitted that in the absence of a pending appeal against the Judgment of 13th April, 2022, the Court would not have jurisdiction to entertain an Application for stay of Execution. Counsel relied on the cases of Dardanelli & 6 others vs Tilito & 3 others [2025] KELC 392 and Kenya Shell vs Kibiru & Another (19986) 1KLR 410.
12.Counsel further relied on Order 42 Rule 6 (2) of the Civil Procedure Rules and that submitted that the Applicant will not suffer any substantial loss if the orders sought are not granted and that she has not offered any security for due performance of the decree. Mr. Karanja relied on the cases of Miriam Muthini Isaiah vs Monica Waruguru Kimani Nakuru High Court ELC No 280 of 2018, Karungu vs Masira & Another KEELC 5683 (KLR) and Fazal vs Lias [2024] KEHC 8175 (KLR), and urged the court to disallow the application with costs to the 1st Respondent.
Analysis And Determination
13.The issues for determination is whether this court should stay execution of the ex-parte judgment delivered on 13th April 2022, and whether the Applicant’s supporting affidavit should be struck out.
14.The 1st Respondent stated that the supporting affidavit sworn on 16th July, 2025, by Eunice Njeri Ikigu, sworn in the United Kingdom is incompetent for lack of compliance with the mandatory provisions of Section 106 (B) of the Evidence Act (Cap 80, Laws of Kenya). I notice that the Affidavit was notarized as required by law and counsel submitted that the certificate has been filed and placed on record, and relied on Order 19 Rule 7 of the Civil Procedure Rules and the case of George Gabriel Kiguru & Another vs Republic [2022] KEHC 2650 (KLR). The jurat of the affidavit also indicated that it was sworn in England and notarized by a Notary Public. This cures the anomaly hence the affidavit is competent.
15.Additionally, the applicant stated that the trial court delivered a ruling on 8th July, 2025, declining to set aside the ex-parte judgment entered on 13th April, 2022, in CMELC No 157 of 2019, of which she states that she has filed an appeal challenging the said ruling/order.
16.On the issue as to whether the Applicant has met the condition of stay of execution, Order 42 Rule 6 of the Civil Procedure Rules 2010 provides as follows:6.(1)“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub-rule (1) unless-(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
17.An Applicant seeking orders of stay of execution must meet the criteria set out under Order 42 Rule 6 of the Civil Procedure Rules. On the issue of whether the Applicant filed this application timeously, the ruling that has given rise to this application was delivered on 8th July 2025, and the Application was filed on 16th July 2025, therefore there was no inordinate delay in filing this application.
18.The Respondent pegged the issue of delay on the Judgment that was delivered on 13th April 2022, and not the application that was dismissed on 8th July 2025. The ruling indicates that the Applicant had filed an application seeking to set aside ex-parte judgment and stay of execution, which was dismissed. In the case of Jaber Mohsen Ali & another v Priscillah Boit & another [2014] the court held as follows:
19.The Applicant further informed the court that if the ex-parte judgment is executed and the stay orders are not granted, her family will be evicted and there will be irreversible dispossession of her proprietary rights contrary to Article 40 of the Constitution of Kenya.
20.The issue of substantial loss was discussed in the case of Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988)l KAR 1018 where the Court of Appeal stated that:
21.Similarly, the issue was also discussed in the case of Bungoma Hc Misc Application No 42 of 2011 James Wangalwa & Another vs. Agnes Naliaka Cheseto that:
22.In the case of Machira t/a Machira & Co. Advocates vs. East African Standard (No 2) (2002) KLR 63, the court held that:
23.The Applicant submitted that she is the registered owner of the suit land and that they risk being dispossessed if the judgment is implemented. The grant of stay of execution orders is discretionary and the court must look at the circumstances of each case. The discretion should be exercised judiciously to serve the interest of justice. An appeal should not be rendered nugatory or be left to proceed as an academic exercise when a stay is not granted and the execution process is implemented.
24.In the case of Absalom Dova vs. Tarbo Transporters [2013] eKLR the court held that:
25.I have considered the Application, the submissions by counsel and find that, it would be in the interest of justice to grant a conditional order of stay of execution in the following terms:a.An order of stay of execution is hereby issued pending the hearing and determination of this Appeal.b.The Appellant to deposit Kshs 300,000/ in a joint interest earning account of the Advocates on record within 30 days failure to which the stay lapses.c.Appellant to file and serve the Record of Appeal within 60 days.d.Costs to abide by the outcome of the Appeal.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 21ST DAY OF NOVEMBER 2025.M. A. ODENYJUDGE