https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13012

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW APPLICATION NOS. E276 AND E297 OF 2026** **AFRISON EXPORT IMPORT LIMITED………..………1ST APPLICANT** **HUELANDS LIMITED………………………………….……2ND APPLICANT** **VERSUS** **ETHICS AND ANTI-CORRUPTION COMMISSION** **(EACC)………………………………………………………………RESPONDENT** **RULING** 1. The matter herein was initiated by way of an *ex parte* chamber summons, dated 28th July 2026, filed in Milimani HCJR No. E276 of 2026, for leave to initiate judicial review proceedings for the orders of *certiorari*, *mandamus* and prohibition, with respect to a decision allegedly made by the respondent, to initiate civil proceedings against the applicants, to recover or repossess a sum of Kshs. 1,500,000,000.00 from them. The leave sought was granted, on 29th July 2026, to file the substantive motion, but in a separate judicial review cause, and that has been done, through Milimani HCJR No. E297 of 2026. 2. Ideally, the grant of leave and the filing of Milimani HCJR No. E0297 of 2026 should have led to the closure of the cause in Milimani HCJR No. E276 of 2026. However, Milimani HCJR No. E276 of 2026 is still active, despite the filing of Milimani HCJR No. E297 of 2026, for the applicants had sought that the grant of leave do operate as a stay order. That order was not granted on 29th July 2026, for the court directed that that prayer be subjected to *inter partes* hearing, by way of written submissions, to be filed and exchanged within 14 days, prior to a ruling thereon being delivered on 18th August 2026. 3. Both sides have complied with those directions, for I see on the record written submissions filed by them. The submissions by the applicants are dated 12th August 2026, while those by the respondent are dated 13th August 2026. 4. The background to the matter is set out in the statutory statement of the applicants, dated 28th August 2026, and the verifying affidavit, sworn by Mr. Mark Mburu, on behalf of the applicants, on even date. I see a supplementary affidavit sworn by the same deponent, on 11th August 2026. It was filed without the leave of the court, and, as a consequence, I shall have no regard to it. 5. There was litigation between the 2 parties, over a parcel of land, which was initially before the Environment and Land Court, in Nairobi NAI ELC Reference No. 1 of 2018, before escalation to the Court of Appeal, as CACA No. 303 of 2019. The dispute was over an award of compensation, of Kshs. 1,500,000,000.00, for compulsory acquisition of land. The Court of Appeal, in a decision made on 3rd July 2026, reported as *Afrison Export Import Limited & another vs. National Land Commission & 9 others* [2026] KECA 1257 (KLR), ruled that that that award was unlawful, null and void. 6. The applicants assert that they have challenged that decision at the Supreme Court, in Petition No. E025 of 2026, and directions have been given on it, on 23rd July 2026, on the filing of responses by the respondent and rejoinders by the applicants. The instant proceedings are intended to stop the respondent from acting on the decision of the Court of Appeal, pending the hearing and determination of their petition at the Supreme Court. 7. In their written submissions, the applicants argue that the decision by the respondent, vide its letter of 6th July 2026, to commence recovery proceedings, following the decision of the Court of Appeal, is premature, in view of the petition filed at the Supreme Court. They cite *Kioko vs. Yusuf (sued as Returning Officer Mombasa) & 3 others* [2022] KEHC 10148 (KLR), to argue that no precipitate action should be taken against them, until all litigation over the issue is exhausted, particularly the petition at the Supreme Court, given that the legality of the decision of the Court of Appeal is still under challenge. It is argued that any precipitate or adverse action, taken against them by the respondent, would be irreversible. They also cite *Taib A. Taib vs. Minister for Local Government & 3 others* [2006] eKLR and *Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet* [2017] KECA 240 (KLR). 8. The respondent, in its written submissions, raises 3 issues, around the instant proceedings being an abuse of the court process, the intended civil recovery suit being *sub judice* and the leave granted herein operating as a stay. It is argued that the appropriate forum for seeking stay should be at the Supreme Court, where the dispute between the 2 parties is active, and in respect of which the Supreme Court has jurisdiction, under section 23A of the Supreme Court Act, Cap. 9B, Laws of Kenya, to grant stay of either execution or further proceedings, or injunction, or conservatory orders. It is argued that it would be abuse of process to be moving the Supreme Court and the High Court at the same time over the same issues. On *sub judice*, it is argued that the petition at the Supreme Court is at the very initial stages, for it is yet to be admitted, hence there is no foundation to raise the issue of *sub judice*. 9. On whether the leave granted herein ought to operate as a stay of recovery of the money, the subject of the Court of Appeal decision, it is argued that grant of stay, under Order 53 rule 1(4) of the Civil Procedure Rules is discretionary, with the order only being made upon judicious application of established principles and the circumstances of each case. *Republic vs. County Government of Uasin Gishu & another* [2015] KEHC 2924 (KLR), *Sun Africa Hotels Limited & another vs. Kenya Revenue Authority & 2 others* [2018] KEHC 3026 (KLR) and *Nanok & another vs. Ethics and Anti-Corruption Commission* [2018] KEHC 3844 (KLR) are relied upon. It is submitted that there are public interest questions arising, particularly on whether the respondent ought to be restrained from discharging its duty. It is also argued that the pendency of an appeal does not amount to an illegality or procedural impropriety upon which judicial review orders could be granted. 10. There is only 1 issue for me to determine, in this ruling, and that is whether a case has been made out, for grant of stay of the decision by the respondent, to recover the money the subject of the judgement, in *Afrison Export Import Limited & another vs. National Land Commission & 9 others* [2026] KECA 1257 (KLR). 11. What comes out clearly, from the review of the background above, is the fact that there has been, and still is, active litigation between the parties hereto, over the money the subject of these proceedings. The matter began at the Environment and Land Court, and was escalated to the Court of Appeal, and it is now before the Supreme Court. The most ideal, and, indeed, the established way of stopping action being taken, pending an appeal or ongoing litigation, is to obtain a stay of execution or an injunction or conservatory orders. Such conservatory orders, whether taking the form of a stay or an injunction, or any other form, are for obtaining from the court or courts seized of the matter. 12. The matter or dispute is currently before the Supreme Court. As the court seized of the same, the Supreme Court has the power to grant conservatory relief of some kind or other, pending disposal of the dispute before it. That jurisdiction is in section 23A of the Supreme Court Act. The Court of Appeal could also have residual jurisdiction over the same, given that it is its decision being challenged at the Supreme Court. The Environment and Land Court would also have jurisdiction, by virtue of Order 42 rule 6 of the Civil Procedure Rules, for it is the primary court, which made the original decision, which has been escalated to the Court of Appeal and the Supreme Court. These are the courts which can legitimately grant conservatory orders, to stop implementation of orders emanating from either of them. The High Court was not seized of the matter at any stage, and it would have no foundation, whatsoever, to grant a stay order, whose effect would be to freeze implementation of orders emanating from the courts seized of the dispute, being the Environment and Land Court and the Court of Appeal. 13. The proceedings herein are anchored solely on the pendency of the petition at the Supreme Court. The stay is sought because there is a matter pending at the Supreme Court. That directly links this matter to the litigation at the Supreme Court. The petition at the Supreme Court arises from the decision of the Court of Appeal, which itself arose from the decision of the Environment and Land Court. Clearly, any post-judgement applications, arising from the decision in *Afrison Export Import Limited & another vs. National Land Commission & 9 others* [2026] KECA 1257 (KLR), should be placed before either of these 3 courts. These judicial review proceedings cannot operate to stay execution of the judgement of the Court of Appeal, in *Afrison Export Import Limited & another vs. National Land Commission & 9 others* [2026] KECA 1257 (KLR), in the circumstances. 14. There is potential abuse of court process, in seeking stay before the High Court, in judicial review proceedings, of implementation of decisions made by other courts. The stay order sought herein is, apparently, a disguised stay of implementation of the decisions of the Environment and Land Court, in Nairobi NAI ELC Reference No. 1 of 2018, and the Court of Appeal, in CACA No. 303 of 2019. The court ought not aid parties, in abusing the court process, by granting to them orders that are sought in obvious duplicitous proceedings. It would be abuse of court process, to initiate proceedings parallel to pending proceedings, to seek orders obtainable from the pending proceedings. I would decline to grant the stay sought on that account. 15. The dispute, that was before the Environment and Land Court and the Court of Appeal, is on compensation, arising from compulsory acquisition of land. The very nature of that dispute takes it away from the jurisdiction of the High Court, by dint of Articles 162(2) and 165(5) of the Constitution. If the applicants felt that there were orders relating to that matter that could be best made by a primary court, rather than the appellate courts, then the proper forum could not be at the High Court, in view of that, but the Environment and Land Court, the court vested, under Article 162 of the Constitution, with jurisdiction over land disputes. There is a sense in which the High Court is being invited to handle a dispute over which it has absolutely no jurisdiction. 16. I do not think that I should say more than what I have so far said. A case does not exist, nor has it been established, for ordering that the grant of leave, in this matter, on 29th July 2026, should operate as a stay, in terms of prayer 3 of the *ex parte* chamber summons dated 28th July 2026, and I hereby decline to grant that prayer. 17. To move this matter forward, noting that the substantive motion has since been filed, I will proceed to give directions on its disposal. The same shall be canvassed by way of written submissions. The parties have 21 days to file and exchange written submissions. The matter shall be mentioned on 23rd September 2026, for compliance, and allocation of a date for judgement. In the meantime, as the cause in Milimani HCJR No. E276 of 2026 is now exhausted, I shall direct that the court file, in respect of that cause, be closed, and placed inside the court file in Milimani HCJR No. E297 of 2026. 18. Orders accordingly. **DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 19TH DAY OF AUGUST 2026.** **WM MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Messrs. Okubasu & Munene, Advocates for the applicants.** **Ms. Jackie Kibogy, Advocate, for the respondent.**