https://new.kenyalaw.org/akn/ke/judgment/keca/2026/988

Ethics and Anti -Corruption Commission v Wazazi Farmers Company Ltd & 4 others (Civil Application E132 of 2025) [2026] KECA 988 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 988 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E132 of 2025 JM Mativo, MB Kairaria & AI Hassan, JJA May 22, 2026 Between Ethics And Anti -Corruption Commission Applicant and Wazazi Farmers Company Ltd 1st Respondent The Kenya Agricultural and Livestock Research 2nd Respondent Savanna Breweries Ltd 3rd Respondent Dave Mwangi 4th Respondent Wangethi Mwangi 5th Respondent (An application for stay of proceedings pending the hearing and determination of an appeal from the Ruling of the Environment and Land Court at Nakuru (Antony Ombwayo, J.) delivered on 20th November 2025 in ELC Case No. E062 of 2021) Ruling 1.By an application dated 8th December, 2025 the Ethics & Anti-Corruption Commission [the applicant] invokes the original and discretionary jurisdiction of this court under rule 5[2] [b] of the Court of Appeal Rules 2022 and principally seek stay of further proceedings in Nakuru ELC case No. E62 of 2021 pending the hearing and determination of an appeal against the ruling of A Ombwayo J. Dated 20th November 2025 in which the Judge dismissed with costs an application by the applicant seeking an order to file the applicant’s list of witnesses, witness statements, and list of documents out of time. 2.The application is expressed to be brought pursuant to section 3A & 3B of the Appellate Jurisdiction Act, rule 5[2] b of the Court of Appeal Rules, 2022 and founded on the grounds set out on the notice of motion, supported by the affidavit of Agosta Mecca sworn on 8th December, 2025. The applicant contends that its intended appeal raises arguable grounds that merit a hearing due to public interest in respect of LR No. 5211 the suit property which is the subject of the litigation before the Environment and Land Court where the applicant applied to be joined and was joined as an interested party to safeguard the property which they aver had been set aside for utilization by Kenya Agricultural and Livestock Research Organization [KARLO] for research purposes but was irregularly and fraudulently acquired by Wazazi Farmers Company Ltd (the 1st respondent). 3.The applicant further avers that its intended appeal will be rendered nugatory and the damage that will be occasioned cannot be reversed in the event its appeal is successful because the plaintiff’s and defendants cases before the trial court is likely to proceed to render judgement in the matter denying the applicant an opportunity to adduce crucial evidence necessary for a fair hearing and attainment of a just determination. This the applicant contends will likely tilt the scales of justice in favor of the 1st respondent and in the process not only deprive the public of land reserved for research on livestock but also burden the public with payment of costs from public coffers. 4.The application is opposed by the 3rd and 4th respondents through replying affidavits sworn by Moses Ngechu Kimemia [on behalf of the 3rd respondent] and Dave Mwangi [the 4th respondent] in which they contend that; the application is devoid of merit, is baseless, frivolous and otherwise an abuse of the court process. They aver that there is no arguable appeal that would be rendered nugatory as the applicant has not filed and served a notice of appeal; the applicant was given opportunity to file the documents after being admitted as an interested party but inordinately delayed in doing so only to come with the dismissed application after both the plaintiff and the defendants had prosecuted and closed their respective cases. To the respondents this is another delaying tactic and urge us to dismiss the application with costs. 5.The parties filed their written submissions in support of their rival submissions. The applicant’ submissions are dated 16th March, 2026 while those of the 1st and 4th respondents are dated 21st April, 2026 and 20th April, 2026 respectively. 6.We have considered the application the affidavit and submissions in support thereof, the replying affidavit and the submissions in opposition to the application as well as cited case law. 7.It is trite that for a party to succeed in an application for stay under rule 5[2] b, an applicant must demonstrate the existence of an arguable appeal which would otherwise be rendered nugatory unless the court intervenes by granting the order sought so as to preserve the substratum of the appeal . The applicant need not have instituted the appeal before approaching the court but the Rules require an applicant to have filed and served a notice of appeal which is treated as an appeal for purposes of an application under 5[2] (b). The notice of appeal is so foundational that it has been characterized as the key that unlocks the court’s power to exercise its unfettered discretion in favor of a party. [See Equity Bank vs West Link Mbo Limited [2013] eKLR. 8.In the case before us the respondents have filed replying affidavits in response to the application asserted that the applicant did not file a notice of appeal. The applicant did not respond to that assertion by way of an affidavit. At the hearing we inquired from the applicant’s counsel whether a notice of appeal had been filed as none was in the e-filing portal. 9.In response counsel stated that a notice of appeal had been lodged and she would have it uploaded in the e-filing portal. Subsequently a copy of a notice of appeal dated 20th November 2025 has been uploaded in the e-filing system. We note that the uploaded notice of appeal does not indicate the date when it was lodged at the ELC and it is not signed by the Deputy Registrar of the trial court. In the absence of the date when the notice of appeal was lodged coupled with the lack of signature by the Deputy Registrar on the copy of notice of appeal uploaded in the e-filing portal we are not satisfied that a valid notice of appeal was actually filed as required by the Rules. In the absence of a validly filed notice of appeal, the jurisdiction of this court has not been properly invoked. 10.In light of this, we find that the application is incompetent and it is not necessary for us to consider whether the applicant has demonstrated an arguable appeal that would otherwise be rendered nugatory. 11.Consequently, the application dated 8th December, 2025 is hereby dismissed with no orders as to costs taking into account the applicant’s submission that involvement in the matter is in exercise of its statutory mandate in a bid to protect public property in the public interest. DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MAY, 2026.J. MATIVO..................................JUDGE OF APPEALMURUNGI B. KAIRARIA..................................JUDGE OF APPEALAHMED ISSACK ................................. JUDGE OF APPEAL I certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR