https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4877

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT KAJIADO** **ELC NO. 502 OF 2017** **FRANCIS NG’ANG’A MUNDIA...................................................PLAINTIFF** **VERSUS** **ISAAC GATHUNGU WANHJOHI………1ST DEFENDANT/ APPLICANT** **JACKSON SIMEI NKARU PARTERU……………..……2ND DEFENDANT** **SIMON MOLOMA NKARU...............…………..………...3RD DEFENDANT** **COUNTY LAND REGISTRAR KAJIADO…….…..……..4TH DEFENDANT** **RULING** 1. The **Application dated 15th April 2026** by the 1st Defendant/Applicant seeks stay of proceedings of this suit on the grounds that the suit property Kajiado/Kaputiei North/3169 is the subject matter of the appeal in **Nairobi Civil Application No. Nai 76 Of 2019: Isaac Gathungu Wanlohi vs Jackson Simei Nkaru Parteru & Simon Moloma Nkaru**. He avers that the pending Appeal is on a jurisdictional question and that these proceedings should be stayed to allow the Court of Appeal to make a determination which might have an effect on this suit. 2. The **Plaintiff** opposes the application arguing that it is an attempt at delaying the hearing of the suit. He adds that the Court had already pronounced itself on the issue of stay of proceedings in the Ruling dated 2nd October 2019 by Christine Ochieng’ J. As such, this application is res judicata. He also argues that the Applicant/1st Defendant can prosecute the matter at the Court of Appeal concurrently with the instant suit without any prejudice pointing out that staying the proceedings for an unknown period of time would be prejudicial to the tenets of access to justice. 3. The **2nd and 3rd Defendants** oppose the application on similar grounds alleging that the 1st Defendant/ Applicant has a habit of trying to stall the suit pointing out that a similar application was denied and the Applicant has not produced evidence of any new facts that warrant revisiting the same prayers. 4. The **1st Defendant/Applicant in his Further Affidavit** states that the Appeal at the Court of Appeal if allowed would dispose of the instant suit as the issue of the grant is at the Court of Appeal. He argues that if the proceedings are not halted, he stands to suffer substantial loss based on a void grant. 5. The application was canvassed by way of written submissions. 6. **Counsel** submitted that the **1st Defendant/Applicant** purchased the suit property from the 2nd and 3rd Defendants’ father in 1994. However, the Plaintiff avers that he purchased the same property 8 years later in 2016 which the 1st Defendant submits is a common fraudulent dealing in the Kajiado registry. Counsel submits that the 2nd and 3rd Defendants allegedly sold the property as administrators of the estate of Nkaru Ntekee. 7. It is submitted that when this suit was filed, the issue of validity of the Grant was referred to the High Court for determination and the Ruling delivered on 26th February 2019 revoked the Grant of Letters of Administration issued in **Kajiado PMC Succession No 44 of 2005: In the Matter of the Estate of Nkaru Ntekee (deceased) to Simon Moloma Nkaru and Jackson Simel Nkaru dated 4th September 2015 and confirmed on 8th September 2015** for lack of jurisdiction of the Resident Magistrate Court among other orders. 8. Dissatisfied with some of the orders, an Appeal was filed at the Court of Appeal. It is submitted that the titles held by the 2nd and 3rd Defendants and sold to the Plaintiff emanate from their alleged authority as administrators of the Estate of their father who had already sold the said property to the 1st Defendant. As such, it is averred that staying the proceedings will allow the Court of Appeal to determine the 1st Defendant’s appeal which has a direct effect on the suit. 9. **Counsel for the Plaintiff submitted** that the Applicant had not satisfied the threshold for grant of stay as provided by **Order 42 Rule 6 Civil Procedure Rules** as he has not demonstrated how continuation of the suit would occasion injustice, adding that stay of proceedings would interfere with their right to have the matter heard without delay as was held in **Kenya Wildlife Service v James Mutembei [20191 eKLR** and **Global Tours & Travels Limited**. 10. Counsel argues that the Appeal to the Court of Appeal did not automatically operate as stay of proceedings pointing out that grant of stay was discretionary and the Applicant has not established reasons warranting such discretion. Counsel argued that if the Applicant was desirous of having the proceedings stayed, he should have moved the Court of Appeal for such orders. Counsel further submits that the Applicant had on other several occasions filed interlocutory applications such as applications for recusal which have led to delay of the matter. As such, the application should be dismissed. 11. **Counsel for the 2nd and 3rd defendant** submits that the application is an abuse of the Court process pointing out the Applicant’s conduct of filing several applications on different procedural issues. Counsel insists that stay of proceedings is unwarranted citing **African Merchant Assurance co. Ltd vs Nyamai Kea & Another [2020] KEHC 1685 (KLR)**. It was his contention that the Applicant has not shown that failure to stay the proceedings would render the appeal nugatory as held in **David Morton Silverstein v Atsango Chesoni [2002] eKLR**. 12. On those facts, the sole issue for determination is whether the grant of leave to appeal against the High Court decision constitutes sufficient reason to stay the proceedings before this court. 13. The applicable principles are settled. Unlike stay of execution, there is no express provision governing stay of proceedings save for the court's inherent jurisdiction under sections 1A, 1B and 3A of the Civil Procedure Act. Stay of proceedings is a grave interruption of a litigant's right to have his case heard expeditiously and should therefore be granted sparingly and only where the interests of justice demand. The court must balance the competing interests of the parties, consider whether the intended appeal is arguable, whether it raises issues that may render the proceedings nugatory, and whether granting stay serves the overriding objective. The principles were discussed in **Global Tours & Travels Ltd, HC Winding Up Cause No. 43 of 2000,** and have been consistently applied in our courts. 14. In the present case, the 1st Defendant contends that because he has obtained leave to appeal against the High Court decision, these proceedings ought to await the Court of Appeal's determination of the appeal against some aspects of the High Court decision. The Plaintiff together with the 2nd and 3rd defendants oppose the application, arguing that a similar application had earlier been dismissed when leave to appeal had not been granted and that the grant of leave alone does not warrant halting the proceedings. 15. The High Court decision relied upon by the parties did not determine proprietary rights over the suit property. Rather, it found that the Resident Magistrate's Court lacked jurisdiction to entertain the succession dispute and expressly directed that the 1st Defendant's claim be determined by this court. The issues pending before this court concern ownership and competing interests in the suit property arising from the alleged sale to the 1st Defendant in 1994 and the subsequent transfer to the Plaintiff in 2014 through the alleged administrators of the estate. The 1st Defendant has submitted at length on the issue of root of title. These are issues which the court cannot determine summarily and can only determine the parties present their evidence. 16. Although the 1st Defendant has since obtained leave to appeal, leave to appeal does not, of itself, operate as a stay of proceedings. The applicant has not demonstrated that the appeal would render these proceedings nugatory or that continuing with the suit would occasion prejudice incapable of being remedied. 17. The court further notes that staying the proceedings would further delay the resolution of a dispute that has been in court for 10 years. Such delay would be inconsistent with the constitutional imperative under Article 159(2) (b) that justice shall not be delayed and with the overriding objective of facilitating the just, expeditious and proportionate determination of disputes. 18. I therefore find that the application has no merit and is dismissed with costs to abide the outcome of the main suit. **Dated, Signed and Delivered virtually at Kajiado this 27th day of July 2026.** **JUDY OMANGE** **JUDGE.** **IN THE PRESENCE OF:** DR Kamau Kuria SC for 1st Defendant. Mr Irungu for Plaintiff. Mr Isaac Odhiambo for 2nd and 3rd Defendant. Peter – Court Assistant.