Chepkoiywo (Suing as the Legal Representative of the Estate of the Late Rosemary Nyambura Gachunia - Deceased) v Karuba & 49 others [2025] KEELC 4101 (KLR)

Chepkoiywo (Suing as the Legal Representative of the Estate of the Late Rosemary Nyambura Gachunia - Deceased) v Karuba & 49 others (Environment & Land Case 34 of 2024) [2025] KEELC 4101 (KLR) (Environment and Land) (29 May 2025) (Ruling)

Neutral citation: [2025] KEELC 4101 (KLR)

Republic of Kenya

In the Environment and Land Court at Naivasha

Environment and Land

Environment & Land Case 34 of 2024

MC Oundo, J

May 29, 2025

Between

Julius Chesaro Chepkoiywo

Plaintiff

Suing as the Legal Representative of the Estate of the Late Rosemary Nyambura Gachunia - Deceased

and

Catherine Karuba

1st Defendant

Gathama Nganga

2nd Defendant

John Mwangi Macharia

3rd Defendant

Mary Nduta Njoroge

4th Defendant

Jane Wanjiku Ndirangu

5th Defendant

Dorcas Wairimu Minyue (Chairlady of Mwana Mwireri Women Group)

6th Defendant

Margaret Wangari Mwangi

7th Defendant

Joyce Wanja Kimani

8th Defendant

Lucy Mugure Kungu

9th Defendant

Agness Waithira Ngugi

10th Defendant

Nyambura Maina

11th Defendant

Gladys Wairimu Gacema

12th Defendant

Esther Wangari Njuguna

13th Defendant

David Azungage Chere

14th Defendant

Danson Maina Wambuku

15th Defendant

George Njoroge Mureu

16th Defendant

Eunice Wairimu Mbere

17th Defendant

Peter Gichuki King’Ori

18th Defendant

Peter Macharia Mak

19th Defendant

James Wainaina Waiguru

20th Defendant

Mary Njathi Riba

21st Defendant

Emmah Wandia

22nd Defendant

Peter Muturi Mbugua

23rd Defendant

James Ngetha Gachanga

24th Defendant

Land Registrar, Nakuru

25th Defendant

George Kihuna Nganga & Mary Njeri Kihuna

26th Defendant

Mary Waruiru Mwithaga

27th Defendant

James Makimei Waweru

28th Defendant

Elizabeth Waithira Kihara

29th Defendant

Nancy Njoki Kirubi

30th Defendant

Carolyne Murugi Njoroge

31st Defendant

Philip Kuria Mwangi

32nd Defendant

James Kamau Macharia & Pauline Wanjiku Mwangi

33rd Defendant

Simon Irere Waringo

34th Defendant

Peter Kariuki Kinyanjui

35th Defendant

James Wainaina Waiguru

36th Defendant

Agnes Waithira Ngugi

37th Defendant

Margaret Wangari Mwangi

38th Defendant

John Mwangi Macharia

39th Defendant

Danson Maina Wambugu

40th Defendant

Mary Wamuyu Njoroge

41st Defendant

Kamau Kinuthia

42nd Defendant

Mary Nduta Njoroge

43rd Defendant

Dorcas Wairimu Minyue

44th Defendant

Esther Wangari Njuguna

45th Defendant

Machael Njoroge Macharia

46th Defendant

Dorcas Wairimu Minyue

47th Defendant

David Azungane Chore

48th Defendant

Francis Nganga Mwangi

49th Defendant

Peter Macharia Mark

50th Defendant

Ruling

1. Pursuant to a Judgment delivered by the Court, on the 14th November, 2024, the Defendants/Applicants have now filed the present Application by way of a Notice of Motion dated 5th December, 2024 brought under the provisions of Sections 1A, 1B, 3A of the Civil Procedure Act, Order 46 rule 6 (1) & (2) and Order 51 rule 1 of the Civil Procedure Rules, and all enabling provisions of the law, where they seek for orders of stay of execution pending the hearing and determination of the appeal against the said judgement.

2. The application is supported by the grounds therein as well as by the sworn affidavit of Hakim Suleiman Rajab, an Advocate of the High Court of Kenya who deponed that being dissatisfied with the Judgement of the court of 14th November, 2024 where judgment had been entered for the Plaintiff against the Defendants. The Defendants had lodged a Notice of Appeal against the whole Judgement.

3. That were the stay orders not granted, substantial loss would result to the Defendants/Appellants as they would be forcefully evicted from the suit property, for which hundreds of families would be displaced and they may not be compensated by an award of damages. That the appeal herein had reasonable chances of success hence execution of the impugned judgement would render it nugatory and an academic exercise. That there had been no delay in bringing the instant Application. That further, the Defendants/Applicants were willing to abide by any conditions and terms of security as the court may deem fit to impose.

4. That the Plaintiff/Decree holder was likely to execute the decree at anytime hence the Defendants/Applicants stood to be prejudiced unless the orders sought herein are granted. He deponed that it was in the interest of justice that a stay of execution be granted so as to enable the intended appeal to proceed to hearing on merit. He thus urged the court to allow the instant application as prayed so as to enable the Defendants/Applicants pursue their right of Appeal and preserve the subject matter herein.

5. In his Replying affidavit of 22nd April 2025, and in opposition of the application the Plaintiff/Respondent deponed that none of the Defendants/Applicants had sworn any Affidavit in support of the Application stating that they would suffer any substantial loss were the orders sought not granted. That there had been no substantiated loss that they would suffer were the judgement not executed and the Court could not therefore be persuaded by the mere depositions of the Applicants' Advocates that the Applicants shall suffer substantial loss. That it behooved the Applicants to explain the substantial loss instead of leaving it to the Court's conjecture.

6. That the Applicants’ had not also demonstrated to the Court how their intended Appeal to the Court of Appeal would be rendered nugatory were the orders sought not granted nor how they would be prejudiced by the execution. That the subject parcel of land shall never move from its geographical and/or physical location irrespective of the outcome of the Appeal.

7. That save for order No. 77 (iv) (v) (vi) and (vii) of the Judgement, all the other reliefs have been fully complied with and in any event they are incapable of being stayed.

8. That the Court ought to balance the interests of the Plaintiff on the one hand, who had succeeded in his case after being tormented by the Defendants from the year 2009, and the interests of the Defendants who desired to continue using the Plaintiff's land to his exclusion, and find in his favour because the land would always be available should the Applicants succeed on appeal.

9. That should the Honorable Court grant the Applicants the order of stay of execution of the Judgment delivered on 14th November 2024, that they be ordered:-i.to deposit in Court, the original Titles set out in paragraph 1(ii) of the Judgment delivered within 30 days from the date of the Ruling, pending the outcome of the intended Appeal.ii.That they deposit in this Court a sum of Ksh 5,000,000/= (Five million) only being security for costs within the next 30 days of the Court's Rulingiii.(iii) In the event of default on any or both of the above conditions, execution of the judgment delivered on 14th November 2024 shall proceed against the Defendants.

10. Parties took directions to have the Application herein disposed of by way of written submissions for which only the Respondent filed his submissions dated the 22nd April 2025 wherein he submitted that the Applicants’ affidavit in support of their Application ought to have been sworn by the Defendants themselves or one of them and further that the same did not state the source of the source of the Advocate's information.

11. That the court in its impugned judgement delivered on 14th November 2024, had found that all Defendants' Title Deeds to have been fraudulently acquired wherein immediate cancellation of all of them had been ordered as well as their vacation from the suit parcel of land, within 45 days in default whereof they should be evicted from the said land.

12. That the Defendants had for over two decades denied the Plaintiff, the use of this land which was unfair That as much as the Defendants had a right to pursue their appeal in the Court of Appeal, the Plaintiff was equally entitled to enjoy the fruits of his success in this matter.

13. That the Applicants’ Counsel had not demonstrated how the cancellation of the Title Deeds or eviction of his clients would affect them, what substantial loss they would suffer were the orders not granted. Indeed, no evidence had been placed before the court that thy had erected permanent buildings on this land. No evidence had been brought forth that the intended Appeal would be rendered nugatory were the orders herein sought not granted.

14. That were the Applicants to succeed, the Court of Appeal would still restore the cancelled titles to them and restore them back to the subject parcel of land. That the Applicants' Application dated 5th December 2024 lacked merit and it should be dismissed with costs.

Determination. 15. On 19th February 2025, parties took directions to have the Application dated the 5th December 2014 disposed of through the filing of written submissions within 14 days. The matter was slated for mention to confirm compliance and to take a date for the ruling on the 17th March 2025 on which day none of the parties had complied. The court extended the date for compliance with a further 14 days to comply and the delivery of the Ruling was set for the 29th May 2025. As I write writing the Ruling, only the Respondent had complied.

16. It is now a settled practice under the new constitutional dispensation that filing of written submissions is the norm as written submissions serve the purpose of expedience and amounts to addressing the court on the evaluation of the evidence of each party and analysis of the law. It is therefore trite that an Applicant who fails to file his submissions on an application as ordered by the court is deemed as a party who has failed to prosecute his application and therefor that application is liable for dismissal. The filing of submissions having been ordered, and this court having extended time for compliance without compliance, the failure by the Applicant to exercise the leave granted to them to file written submissions clearly demonstrates inertia and inordinate delay, lack of interest and/or seriousness on the Applicant’s part in the prosecution of the matter.

17. In Elaki v District Land Registrar Vihiga & another (Civil Appeal 220 of 2019) [2021] KECA 340 (KLR) (17 December 2021) (Judgment), the Court of Appeal at paragraph 17 had observed as follows:“Despite the clear orders of the court, the appellant’s counsel failed to file the written submissions. It is a worrying trend when counsel as officers of the court blatantly choose to disregard court orders of this nature that are intended to further the interests of justice by expediting court proceedings. Again, no reasons were advanced for this failure.”

18. The Court of Appeal in Rowlands Ndegwa and 4 Others v County Government of Nyeri and 3 Others; Agriculture, Fisheries and Food Authority & Another (Interested Parties) [2020] eKLR, citing with approval the decision of the High Court in, Winnie Wanjiku Mwai v Attorney General & 3 others [2016] eKLR, observed as follows:“With regard to dismissal for want of prosecution, there are indeed no hard and fast rules as to the manner in which the inherent power and discretion to dismiss an action for want of prosecution is to be exercised. It is however generally accepted that dismissal will be invited if there should be a delay in the prosecution of the action and the respondent is prejudiced by the delay with attention also being paid to the reasons for the inactivity….”

19. The mode of hearing having been taken by the parties, and there having been no compliance by the Applicant, I am persuaded to dismiss the main motion, which I now do, with costs.

DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 29THDAY OF MAY 2025. M.C. OUNDOENVIRONMENT & LAND – JUDGE