https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3639

Amol (Suing as Legal Representative of the Estate of Japhet Juma Fred - Dcd) v Omondi & 2 others (Environment and Land Case E015 of 2023) [2026] KEELC 3639 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3639 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case E015 of 2023 A Nyukuri, J June 3, 2026 Between Benta Akoth Amol (Suing as Legal Representative of the Estate of Japhet Juma Fred (Dcd) Plaintiff and Jeniffer Iteya Omondi & 2 others Defendant Ruling Introduction 1.This ruling is in regard to two applications; namely the application dated 10th February 2025 filed by the 18th defendant and the 1st, 2nd, 6th and 8th defendants’ application dated 16th October 2025. Application dated 10th February 2025 2.In the application dated 10th February 2025, the 18th defendant sought orders that the 18th defendant be struck off these proceedings. It also sought costs. The basis of the application is contained in the grounds on the face of the application as well as the applicant’s supporting affidavit sworn by one Joan Gachumba, the Assistant Manager legal services of the 18th defendant. The applicant’s position is that the 2nd defendant who was the registered proprietor of parcel No. Butsotso/Shikoti/14789, (Suit property) obtained loan facilities from the 18th defendant but upon completion of payment of the loan, the title of the suit property has been discharged, hence the 18th defendant no longer has interest in the suit property and therefore its presence in the suit is unnecessary. 3.The plaintiff did not oppose the prayer for striking off the 18th defendant’s name from these proceedings. She however sought costs of the suit and application. The court directed both the plaintiff and 18th defendant to file submissions on the question of costs. On record are submissions filed by the plaintiffs dated 29th October 2025 and those filed by the 18th defendant dated 2nd July 2025. Plaintiff’s submissions 4.Counsel for the plaintiff maintained that the 18th defendant largely contributed to the delay of this matter as the other parties had already entered into a consent. That all defendants, save the 1st, 6th, 7th, 8th, 13th, and 18th defendants signed a consent dated 23rd January 2024, settling the matter and that on the date of the adopti0n on 4th March 2024, only the 18th defendant objected to its adoption constraining parties to take a hearing date. That the matter has been adjourned severally with the 18th defendant contributing to the adjournments. That the plaintiff’s case was that title for the suit property was fraudulently obtained, hence the charge by the 18th defendant could not be sustained. That the plaintiff provided documentary proof of fraud. That the said proof having been brought to the attention of the 18th defendant, the latter ought to have restructured the 2nd defendant’s security especially in view of the 2nd defendant’s admission of fraud. He sought costs of the suit as against the 18th defendant and costs in regard to the application dated 10th February 2025. 18th defendant’s submissions 5.Counsel for the 18th defendant submitted that the only reason the 18th defendant was sued was because it held a charge in regard to parcel No. Butsotso/Shikoti/14789 used as collateral to secure a loan advanced to Scoop Ventures Limited where the 2nd defendant is a director. That if consent between parties herein had been adopted, it would have settled the matter but that the 18th defendant declined to sign the consent, as the same was not approved by the bank. 6.Counsel argued that the plaintiff is not entitled to costs as the bank acted within its legal rights guided by the need to protect a subsisting security. Further that there is no legal or equitable basis for costs to be issued against the bank. Maintaining that the bank was a “necessary and non-contentious party” counsel insisted that the bank did not dispute the plaintiff’s case or file any defence beyond noting its interest in the suit property as chargee. They maintained that the bank had no underlying interest in the suit property beyond the charge. That at the time of the signing the consent by the parties herein, the loan granted by the 18th defendant was in default and that adoption of the consent would have had the effect of reverting the charged parcel to the plaintiff, hence extinguishing the bank’s security when the debt remained unpaid. That upon settlement of the loan, the title for the suit property having been discharged, it moved the court accordingly since it had no interest in the property. 7.Counsel relied on section 27 of the Civil Procedure Act and submitted that the general rule is that costs follow the event yet justice should be done. That the court must assess whether a party acted in good faith, was a necessary party or contributed to the litigation unnecessarily or obstructively. Reliance was placed on the case of Cecilia Karuru Ngayu v Barclays Bank of Kenya [2016] eKLR for the proposition that where a party is joined solely to protect a legitimate interest and acts within its lawful mandate, an order for costs against such party is unjustified. 8.Counsel contented that as the 18th defendant was a necessary and non-contentious party, being merely a chargee protecting its registered proprietary interest, it did not dispute the plaintiff’s claim and did not even file defence beyond noting its interest in the suit property. 9.It was also argued for the 18th defendant that the bank’s refusal to consent was commercially and legally justified in view of its duty to protect its security interest. That endorsing the consent would have prejudiced its ability to enforce repayment. It maintained that no prejudice was occasioned to the plaintiff from the position taken by the bank. That the bank took prompt action in good faith by seeking to be discharged from these proceedings. 10.On without prejudice basis, counsel submitted that if costs should issue against the 18th defendant, they ought to be borne by the 2nd defendant, as he was responsible for the bank’s involvement with the suit property as he failed to inform the bank of the consent. Application dated 16th October 2025 11.In the application dated 16th October 2025, the 1st, 2nd and 6th defendants sought orders that proceedings in this case be stayed pending hearing and determination of Kakamega CMC Succession Cause No. 321 of 2023. They also sought costs. The application was supported by the affidavit sworn on even date by the 6th defendant. It was the applicants’ position that parcel No. Butsotso/Shikoti/15317 which is subject of this matter was a subdivision of parcel No. 13106 which is the subject of Kakamega CM Succession Cause No. E321 of 2023, where an application for revocation of grant is pending and touches on a dispute on ownership and title thereof. That there is a risk of conflicting judgments and that the said Succession Cause will determine the question of ownership. 12.The application was opposed. The plaintiff filed grounds of opposition dated 29th October 2025 and a replying affidavit dated 28th January 2026. In the grounds of opposition, she sated that the application was frivolous and vexatious as this court and the succession court exercise different jurisdictions and a decision of one court will not affect a decision of another court. That it is the Succession case that ought to be stayed as the decision of this court will determine what is owned by the deceased’s estate and that the Succession court has no jurisdiction to determine ownership of land. 13.In the replying affidavit, the plaintiff stated that she is the petitioner in Kakamega Succession Cause No. E321 of 2023, which relate to the estate of Japheth Juma Fred, regarding parcel No. Butsotso/Shokoti/13106. That at the time of his death, the said parcel was registered in his name. That the said property was listed as his estate and that at the point of listing the same it had already been illegally transferred to another person fraudulently. That the purpose of this suit is to recover the suit property and have it reverted to the late Japheth and that if this suit is stayed there will be nothing to be distributed in Kakamega CM Succession Cause No. E321 of 2023. 14.The application was canvassed by way of written submissions. On record are submissions filed by the plaintiff dated 28th January 2026, which the court has duly considered. Analysis and Determination 15.The court has carefully considered the two applications, the responses thereto as well as rival submissions. Two issues arise for the court’s determination, namely;a.Whether costs of the suit and of the application dated 10th February 2025, as against the 18th defendant should be awarded to the plaintiff; andb.Whether there is lawful justification for proceedings herein to be stayed. 16.Section 27 of the Civil Procedure Act provides that costs are awarded at the court’s discretion and that they shall follow the event. Therefore, the court’s discretion to award costs ought to be exercised judiciously and not whimsically or arbitrarily. 17.In Re estate of Monica Wanjiru Macharia (Deceased) Family Appeal 15 of 2023 [2024] KEHC 14780, the court held that;“Section 27 of the Act is clear that it lies in the discretion of the court to award costs in a suit. This discretion must be exercised judiciously.” 18.In Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR, the court stated factors that ought to be considered in awarding costs as follows;a.The conduct of the partiesb.The subject of litigationc.The circumstances which led to the institution of the proceedings;d.The events that led to their termination;e.The stage at which the proceedings were terminated;f.The manner in which they were terminated;g.The relationship between the parties, andh.The need to promote reconciliation among disputing parties pursuant to Article 159 (2) ( c ) of the Constitution 19.In the case of Roche v Roche & Another C.A No. 177 of 2019[ 2025] KECA 1637 (KLR) (3 October 20250 (Judgment) the Court of Appeal held that even where a suit involves family members, costs may be awarded as long as the court’s exercise of discretion is not injudicious. 20.In the instant case, the basis for seeking costs against the 18th defendant by the plaintiff is that she moved this court to recover the deceased’s property because registration of the same in the name of the 2nd defendant was by fraud and hence the charge by the 18th defendant was based on the 2nd defendant’s fraud. That the 18th defendant’s refusal to agree to the consent to settle this matter and its subsequent multiple requests for adjournments have unnecessarily delayed this matter. 21.The 18th defendant on its part argued that did not oppose the plaintiff’s claim but only tried to protect its security on the basis of the charge. That if costs are to be paid, they should be borne on its behalf by the 2nd defendant. 22.Essentially, it its submissions, the 18th defendant does not dispute the plaintiff’s claim, but maintains that it had to wait until the borrower discharged its obligation for it to formally concede to the same. Therefore, it only sought to be struck out of the suit because, an entity that is not party to this suit, had discharged its contractual obligation with it. This suit was filed in 2023. I have perused the defence. The 18th defendant in its defence did not contest the plaintiff’s allegation of fraud, but insisted that it was not aware of the fraud and did not participate in it. It argued that the plaintiff’s suit should be dismissed because it was protecting its right to security. It is obvious that the alleged rights of a chargee who is the 18th defendant, were militating against the plaintiff’s alleged rights as alleged lawful owner whose property had allegedly been fraudulently acquired by the 2nd defendant. The 2nd defendant has not disputed the plaintiff’s assertions that he fraudulently acquired registration before offering the suit property as security for a loan from the 18th defendant. 23.The 18th defendant was a necessary defendant because its interest in the title of the suit property was contrary to the plaintiff’s interest. To the extent that the 18th defendant was not disputing the plaintiff’s averments of fraud, and in view of the well settled legal position that innocence on the part of a party transacting with a fraudster cannot validate a transaction founded on fraud (See the case of Dinah Management Limited v County Government of Mombasa & 5 Others Petition No. 8 (E010 ) of 2021), whether or not the borrower settled the loan, the issue of the tainted root of title was already conceded to by the 18th defendant and therefore, it had no business delaying the matter for two years, as proceedings show that it made several applications for adjournment but was unwilling to consent to the settlement of the matter despite the concession. The 18th defendant’s conduct, demonstrated bad faith and a flagrant waste of judicial time. The 18th defendant was unwilling to proceed with the matter as seen from proceedings. It has given the basis for that position being that it was waiting for the borrower to settle the loan, knowing well that the case did not turn on whether or not the borrower paid the loan as agreed, but on whether the acquisition of title by the 2nd defendant was by fraud. 24.For the above reasons, I am convinced that while its continued presence in this suit, will no longer serve any purpose as conceded by the plaintiff, the 18th defendant is liable to pay costs. Therefore, the application dated 10th February 2025 is merited and the same is hereby allowed. The costs of the application and that of the suit as against the 18th defendant are hereby awarded to the plaintiff and shall be borne by the 18th defendant. 25.On the prayer for stay of proceedings, it is trite that the threshold for grant of stay of proceedings is higher than that for grant of stay of execution. Once cases are filed in court, expeditious disposal as envisaged under the provisions of Article 159 (2) (b) of the Constitution of Kenya as read with section 3 of the Environment and Land Court Act and sections 1A and 1B of the Civil Procedure Act is expected. On that basis therefore, an applicant seeking to obtain orders of stay of proceedings ought to unequivocally show that proceeding with the matter will result in demonstrable injustice. 26.In the case of Kenya Wildlife Service v James Mutembei (2019) eKLR, it held that;“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, right to be heard without delay, and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.” 27.In the instant suit, the applicants argue that if this suit proceeds, there is a danger of conflicting judgments because both this case and the Succession Cause deal with ownership of the suit property. 28.First, the jurisdiction of this court is prescribed in Article 162 (2) (b) of the Constitution of Kenya to deal with matters concerning the environment, use and occupation of and title to land, while succession courts deal with distribution of the lawful property of a deceased person. Therefore, the applicants’ assertions of the likelihood of contradictory judgments are not plausible in view of the different jurisdictions. The Succession Court does not determine questions of ownership of land. 29.As there is no compelling reasons why these proceedings should be stalled, I find no merit in the application dated 16th October 2025, which I dismiss with costs. The 18th defendant’s application dated 10th February 2025 is hereby allowed. The 18th defendant’s name is hereby struck out from these proceedings and the plaintiff is hereby awarded the costs of the application dated 10th February 2025 together with costs of the suit as against the 18th defendant, which shall be borne by the 18th defendant. 30.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 3RD DAY OF JUNE, 2026A. NYUKURIJUDGEIn the presence of;Ms. Rautto for the plaintiffMr. Magina holding brief for Mr. Esese for the 1st, 2nd, 6th and 8th defendantMr. Odiyo for the 18th defendantCourt Assistant: Delphine