https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/438

Lukorito (Suing as the Legal Representative of the Late Enos Wafula Lukorito) & 3 others v Kinyokie & 15 others (Environment and Land Case 138 of 2018) [2026] KEMC 438 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEMC 438 (KLR) Republic of Kenya In the Bungoma Law Courts Environment and Land Case 138 of 2018 RN Maloba, SPM August 6, 2026 Between Benard Kisaka Lukorito (Suing as the Legal Representative of the Late Enos Wafula Lukorito) & 3 others & 3 others & 3 others Plaintiff and Benson Kinyokie & 15 others & 15 others & 15 others Defendant Ruling 1.The applicant in the application dated 28/06/2026 is one Rose Naliaka Wanyonyi who is the 16th defendant herein. In the application, she seeks orders inter alia;1.Spent.2.That the judgment in this suit due to be delivered on 29/06/2026 be arrested pending further orders.3.That costs be in the suit. Grounds 2.The application was premised on grounds inter alia; That the title deeds which are in contention in this suit were fraudulently obtained in HC SUCC 45 OF 1997. That the original administrator was not a beneficiary and his son who succeeded him after his death continue to hold onto the titles illegally. That the High Court has just dismissed their application for revocation of grant. That they have appealed against the decision of the High Court. That the court has power to arrest the judgment so as to give the applicants the opportunity to pursue the appeal. 3.An affidavit in support of this application was sworn by the Applicants’ counsel Mr. Angima Advocate. He reiterated the above matters and asked the court to exercise its discretion power and arrest the judgment herein. 3.Annexed to the affidavit was a Notice of Appeal in HCSUCC 45 of 1997. 4.This application was opposed by the 2nd plaintiff who is the legal administrator or representative of the estate of Pius Choige Chemlany. His affidavit in reply was sworn on 09/07/2026. His arguments in it were inter alia; The application is frivolous, vexatious and scandalous. The application is bad in law and is a non-starter. That applicants did not obtain any order of stay of the proceedings herein in the HCSUCC 45 OF 1997 upon dismissal of their application dated 24/09/2025 as dismissed on 25/06/2026. Case is 23 years old having started in the High Court as Case No. 03/2003. That the Applicants have used every means possible to delay this case because they are in occupation of the suit land. That there is no proof of appeal of High Court’s ruling dated 25/06/2026 dismissing the Applicants’ application dated 24/09/2025. That the HCSUCC 45 of 1997 has no relationship with the present case. Issues for determination 3.To be determined in this application are the following issues;1.Whether the prayer to arrest judgment of this court is warranted?2.Whether the said prayer should be allowed.3.Who bears costs of this application. Determination 4.The applicant’s main prayer is that judgment in this matter be arrested pending further orders of this court. It is brought under order 3 and 3A of the Civil Procedure act amongst other enabling provisions. Therefore, what is sought in the exercise by court of its inherent power “to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 5.In her grounds, the Applicant annexed to their affidavit a Notice of Appeal filed in HCSUCC 45 of 1997. The appeal is against the High Court dismissing her application for revocation of grant as explained above. She further argued that the titles herein were obtained fraudulently in HCSUCC 45 of 1997. Although the Respondents denied that there exists a connection between the said Cause and the present case, it is clear that in fact, the same does exist. That gives a clear nexus between that case and the present. The root of title of the subject land in dispute in this matter is actually traceable from the said cause. 6.However, the odds in this matter are still against the Applicants. Firstly, they have admitted that their application for revocation of grant in HCSUCC 45 of 1997was dismissed by the High Court. Per the averments made by the Respondents, the same was dismissed on 25/06/2026. But the Applicants have since filed or intent to file appeal against that dismissal order judging from the Notice of Appeal annexed herein. 7.But as was correctly observed by the Respondents, there exists no order of stay of either the proceedings herein or even those in the HCSUCC 45 OF 1997. At least no order of stay from the superior courts has been provided as a basis upon which this court can proceed and arrest its judgment. Besides, the Applicants have not made any substantive prayer for stay of these proceedings pending the appeal or further orders of this court. The prayer for arresting of this court’s judgment is not substantive in nature but merely a temporary one. It must get spent at some point and particularly upon consideration of the application to give way to a substantive one. The substantive prayer must accompany the one seeking arrest of the judgment otherwise, it would be deemed to be a non-starter as was argued by the respondents. In this case, there is no further prayer beyond that of arresting of judgment. As such, I would find that this application is in fact spent upon delivery of this ruling and hence, it is a non-starter. 8.Thirdly, although the court has powers to arrest a judgment pending before it, it must not lose sight of the fact that, the dictates of justice demand that matters before it should be adjudicated upon expeditiously without unreasonable delay. This is demanded by provisions of Article 59 (2) (b) of the Constitution and Section 1 A and 1B of the Civil Procedure Act. Arresting judgment of this court over a matter that is being taken to the Court of Appeal without a valid order of stay from any of the superior court’s concerned would amount to unreasonable delay of this matter without any proper or valid ground. This is made worse by the fact that this is matter that has been in court for over 20 years since it was first filed as HCCC 3 of 2003. 9.In view of the above, this our declines to allow this application and dismissed it with costs to the 2nd Respondent. DATED & DELIVERED IN OPEN COURT THIS 6TH DAY OF AUGUST 2026RUTH B.N MALOBA (MS)SENIOR PRINCIPAL MAGISTRATE06/ 08/2026In the presence of;Mr. Wamalwa for the Respondent.N/A for Mr. Angima for the Applicant.