Alaibua & another v M’Luruti & another (Environment and Land Miscellaneous Case E014 of 2026) [2026] KEELC 2973 (KLR) (13 May 2026) (Ruling)

Alaibua & another v M’Luruti & another (Environment and Land Miscellaneous Case E014 of 2026) [2026] KEELC 2973 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 2973 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Miscellaneous Case E014 of 2026 JO Mboya, J May 13, 2026 Between James Baithambu Alaibua 1st Applicant Jeremiah Kanampiu Baibaya 2nd Applicant and M’Laikanya M’Luruti 1st Respondent County Government of Meru 2nd Respondent Ruling 1.Before me is the Application dated the 10.03.2026; brought pursuant to the provisions of Sections 1A, 1B, 3A and 75 of the Civil Procedure Act, Chapter 21, Laws of Kenya; Order 42 Rule 6; Order 43 Rules 1, 2 and 3; and Order 51 Rule 1 of the Civil Procedure Rules 2010; as well as the provisions of Articles 48, 50 and 159 [2] [d] of the Constitution, 2010. The reliefs sought at the foot of the application are:i.That this application be certified as urgent and be heard exparte in the first instance.ii.That this Honourable Court be pleased to grant the Applicants leave to appeal against the ruling delivered on 12.02.2026 by Hon. Ayuka [P M] in Tigania Magistrate’s Court ELC No. 2 of 2022.iii.That pending the hearing and determination of this application, this Honourable Court be pleased to grant a stay of proceedings in Tigania Law Courts ELC case No. 2 of 2022iv.That pending the hearing and determination of the intended appeal, this Honourable court be pleased to grant a stay of proceedings in Tigania Law Courts ELC case No. E002 of 2022.v.That costs of this application be in the cause. 2.The Application is premised on various grounds which have been enumerated in the body thereof. The grounds are: The applicant is aggrieved with the ruling of the Trial magistrate delivered on the 12.02.2026; the ruling in question related to an application to summon the Physical Planner to attend court and testify on behalf of the applicant; the failure to summon the physical planner impacts on/ violate[s] the applicant’s right to fair hearing; and that the impugned ruling was an interlocutory ruling and thus requires leave of the court. 3.Additionally, it has been contended that the intended the appeal against the impugned ruling raises pertinent issues and thus same has high chance of success. Furthermore, it has also been posited that the continuation of the proceedings in the lower court shall compromise the appeal and render same nugatory. 4.The application is supported by the affidavit of the applicant sworn on the 10.03.2026. The averments in the body of the application have reiterated the contents of the grounds which have since been highlighted in the preceding paragraphs. 5.The application was served upon the respondents. However, neither of the respondents filed any response to the application. Nevertheless, learned counsel Mr. Maranya Esquire attended court for and on behalf of the 1st respondent. 6.The application came up for hearing on the 13.05.2026, whereupon the advocates for the parties, namely; the Applicant and the 1st respondent, intimated to the court that same were ready to proceed. The court thereafter issued directions and the application was duly canvassed vide oral submissions. 7.Learned counsel for the Adopted the grounds at the foot of the application; reiterated the averments in the supporting affidavit; and thereafter highlighted five [5] key issues. The issues are: The applicant sought liberty of the trial court to summon the physical planner to testify; the application to summon the physical planner was declined; the applicant is aggrieved and intends to file an appeal; the intended appeal has high chances of success; and sufficient basis has been laid/ established to warrant the grant of Leave to Appeal. 8.Additionally, learned counsel for the applicant also submitted that the applicant had sought leave of the trial court to appeal, but the application for leave to appeal and the order relative to the said application, were never captured/reflected in the body of the proceedings. Moreover, learned counsel posited that same has not been able to annex any proceedings to show that leave was sought for in the lower court, because there are no such proceedings. 9.Other than the foregoing, learned counsel for the applicant has submitted that even if the application for leave was never mounted before the lower court, this court is still seized of the requisite jurisdiction to grant the leave. To this end, learned counsel for the applicant has invited the court to be guided by the provisions of Article 159[2] [d] of the Constitution,2010. In particular the court has been invited to rise to the occasion and to disregard undue procedural technicalities. 10.In a nutshell, the court has been implored to grant the application and allow the applicant the latitude to file an appeal against the impugned ruling. In addition, the court has been invited to grant an order of stay of proceedings of the Lower Court pending [sic] the intended Appeal before this Court. 11.Learned counsel for First respondent highlighted two issues. Firstly, learned counsel for the 1st respondent submitted that the applicant ought to have sought leave to appeal before the trial court in the first instance. In addition, it was submitted that no such leave was ever sought before the trial court and hence the current application is premature, misconceived and legally untenable. 12.Moreover, learned counsel for the 1st respondent submitted that if application for leave was ever mounted before the lower court [ which is contended not to be the case] then the advocate for the 1st respondent and the other respondent would have been afforded an opportunity to respond. Be that as it may, learned counsel posited that the application before the court is contrary to the provision of Order 43 Rule 1[3] of the Civil Procedure Rules. 13.Secondly, learned counsel for the 1st respondent has submitted that a prayer for stay of proceedings in the lower court has been made and mounted in vacuum insofar as there is no appeal which has been lodged and which is capable of underpinning the stay sought. To this end, it has been submitted that the order of stay of proceedings does not meet/satisfy the threshold set vide Order 42 Rule 6 [1] of the civil Procedure Rules, 2010. 14.Based on the foregoing, learned counsel for the 1st respondent has contended that the application before the court does not lie. The court has been invited to dismiss the application and award costs to the 1st respondent. 15.Having reviewed the Notice of Motion Application dated the 10.03.2026; the supporting affidavit thereto; and upon considering the submissions by/on behalf of the respective advocates, two [2] issues crystalize for consideration and determination. The issues are: Whether the application for leave to appeal is competent or otherwise; and W hether the applicant has established sufficient cause to warrant the grant of an order of stay of proceedings or otherwise. 16.Regarding the first issue, it is important to underscore that whenever a party is aggrieved by an order of the trial court, for which no right of appeal is provided for, such a party is enjoined to apply for leave before the trial court in the first instance. Furthermore, it is common ground that the application for leave can be mounted/made informally at the time of the delivery of the ruling or the making of the order, which is sought to be appealed against. 17.On the other hand, where the application for leave to appeal is not made informally at the time of the delivery of the ruling or the making of the order sought to be appealed against, then the applicant [aggrieved party] has the liberty to file a formal application to the trial court, albeit within 14 days. 18.The provisions of Order 43 rule 1 [3] of the Civil Procedure Rules 2010, are apt and explicit. The said provisions stipulate thus:1)Anappeal shall lie as of right from the following Orders and rules under the provisions of section 75(1)(h) of the Act—.(2)An appeal shall lie with the leave of the court from any other order made under these Rules.(3)An applications for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.(4)Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief. 19.My reading of the provisions of the Order 43 Rule 1[3] of the Civil Procedure Rules, 2010 drive[s] me to the conclusion that the applicant herein was enjoined to make the application for leave to appeal before the trial court in the first instance. The operative word deployed in the named provisions is “shall”, which is mandatory/peremptory. The applicant herein was not left with any discretion or room to maneuver. Suffice it to state that where the law is explicit and deploys the peremptory word “shall”, the party must oblige. [See the decision of the in the case of Macharia Mwangi & Njeru Advocates v Ecobank Limited (Civil Appeal E474 of 2021) [2023] KECA 1501 (KLR)]. 20.With respect to the instant matter, the applicant did not seek or apply for leave before the trial court in the prescribed manner. In any event, the applicant has not adverted to or pointed out that same made an application for leave to appeal before the trial court in the first instance; and that the application was declined or otherwise disregarded. I repeat that such depositions, if at all, ought to have been captured in the body of the affidavit. 21.Moreover, it is trite and established law that any factual or evidential matter, can only be brought to court by way of affidavit evidence except where the law allows the court to take judicial notice of the issue/matter. Notably, the matters for which a court of law can take judicial notice of are provided for and highlighted vide Sections 58, 59 and 60 of the Evidence Act, Chapter 80 Laws of Kenya. 22.Be that as it may, it is also important to point out that during and in the course of the submissions, learned counsel for the applicant made very curious allegations against the trial magistrate. Counsel contended that same made an application for leave to appeal, but the learned trial magistrate did not capture or reflect the said application in the proceedings. In addition, counsel posited that the learned trial magistrate also failed to make an order or ruling in respect of the said application. 23.I wish to point out that the submissions which were canvassed by and on behalf of the learned counsel for the applicant and which were made from the bar, are devoid of probative value. No submissions can be made touching on and concerning evidentiary matters, without there being a factual foundation or basis. Simply put, submissions, no matter how colorful they are, can take the place of evidence. [see Daniel Toroitich Arap Moi versus Mwangi Stephen Mureithi [2014] eKLR; and Frank logistics Limited versus Golden Lion Real Estate Limited and others [2025] KECA] 24.Additionally, it is worthy to underscore that if the applicant, ever made the application for leave to appeal in the lower court and same was declined [which is not the case] then the applicant would have alluded to the same in the body of the supporting affidavit. For good measure, the supporting affidavit does not make any such deposition. The absence of any such averments in the affidavit, is testament to the fact that the allegation[s] are preposterous, and are only meant to scandalize the Judicial Officer; and to besmirch the integrity of the named Judicial Officer. 25.To my mind, learned counsel for the applicant was trying to be smart having been caught by the peremptory provisions of the Order 43 Rule 1 [3] of the Civil Procedure Rules. The smartness went far beyond and included making wild surmises against the learned trial magistrate. I do not think we need to go this way. Litigation must still be conducted with decorum and deference. 26.Before concluding on this issue, I wish to point out that the failure to seek leave before the trial court divest and deprives the applicant of the right to approach this court. This legal position was highlighted and underscored by the supreme court of Kenya in the case of Sum Model Industries Ltd v. Industrial & Commercial Development Corporation [2011] eKLR. 27.Turning to the second issue, I wish to point out that an application for stay of execution or stay of proceedings in terms of Order 42 Rule 6 [1] of the Civil Procedure Rules 2010, can only be mounted where there is an appeal in existence and not otherwise. In respect of the instant matter, there is no gainsaying that no appeal has been filed. Instructively, the applicant is before this court begging for leave to appeal, which essentially vindicates the position that no appeal has since been filed. 28.In the absence of an appeal, I am afraid that the orders, of stay of proceedings pending [sic] the intended Appeal, which have been sought by the applicant, are not maintainable. In my humble view, the application beforehand and essentially, the aspect of stay of proceedings has been made in vacuum. 29.In the case of Equity Bank Limited Versus Mbo West Link Limited [2013] eKLR, the Five Judge Bench of the Court of Appeal underscored that an application for stay of execution; or stay of proceedings pending an appeal or intended appeal, can only be engaged with in the appeal and not otherwise. The observation of Justice E M Githinji , J A [as he then was] at paragraph 11 of his ruling is apt. Simply put, there must be an appeal of sorts before such an application can be made. The said application cannot be made in [sic] anticipation of an appeal, save under the Provision[s] of Order 42 Rule 6[4] of the Civil Procedure Rules, where there is a Notice of Appeal to the Court of Appeal, which is not the case herein. Conclusion 30.Flowing from the analysis in the body of the ruling, I come to the conclusion that the application for leave to appeal is premature and misconceived. Furthermore, the application was mounted without due regard to the provisions of Order 43 Rule 1 [3] of the Civil Procedure Rules 2010. 31.Additionally, the limb of the application which sought stay of proceedings pending the hearing of [sic] the intended appeal; and which appeal is none existent, was clearly made in vacuum. 32.Finally, it is also important to point out that the nature of infractions alluded to herein before are not merely procedural. The infractions and or lapses are fundamental and go the root of the jurisdiction of this court. Moreover, it is common ground that parties cannot disregard rules of procedure with abandon; and expect the Courts of Law to treat same [Parties] with kid glove[s]. Final orders: 33.Consequently, the final orders which commend themselves to me are:i.The Application dated 10.03.2026 be and is hereby struck out.ii.Costs of the Application be and are hereby awarded to the 1st Respondent only.iii.The Costs in terms of clause [ii] shall be agreed upon; and in default be taxed in the conventional manner. 34.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF MAY, 2026OGUTTU MBOYA, FCIArb;CPM [MTI-EA]JUDGE.In the presence of:Court Assistant: ZakayoMr. Muthamia for the Applicant.Mr. Maranya for the 1st Respondent.N/A for the 2nd Respondent