https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4548

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLMISC NO. E032 OF 2025** **DANIEL NDIRANGU GACHIHI………………………….……..1ST APPLICANT** **ELIAS NDIRANGU GACHIHI…………………………………..2ND APPLICANT** **VERSUS** **ATC KENYA OPERATIONS LIMITED………………………..1ST RESPONDENT** **TELKOM KENYA LIMITED…………………………………..2ND RESPONDENT** **GEORGE MUNDERU MURIITHI…………………………...3RD RESPONDENT** **RULING** 1. The Applicants are moving the Court under Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010, Section 1A, 1B, 3 and 3A of the Civil Procedure Act to urgently intervene in a pending matter currently before the Ruiru Chief Magistrate’s Court, **Civil Suit No. E084 of 2025**. The primary objective of this specific Motion is to stay all activities in the lower Court to prevent a Ruling from being delivered while a separate, earlier application for the transfer of the case to the Environment and Land Court (ELC) in Thika is still being considered. The Motion emphasizes that without this stay, the lower Court might dismiss the case, effectively stripping the Applicants of their right to have the matter heard in the proper forum. 2. The Applicants are requesting the following specific orders from the Court: 3. That the application be heard in the first instance without the presence of the other parties due to its pressing nature. 4. An order to halt all proceedings in Ruiru Chief Magistrate’s Court **Civil Suit No. E084 of 2025** until this application is determined. 5. An order to halt proceedings in the same suit pending the hearing and determination of the previous Application dated **April 25, 2025** (the transfer request). 6. That the costs associated with this application be provided for by the Court. 7. The Application is supported by the Affidavit of **Daniel Ndirangu Gachihi** and is premised on the grounds that the Applicants moved this Honourable Court vide an Omnibus Application dated 25/04/2025 seeking the transfer of **Ruiru CMCC No. E084 of 2025** to the **Environment and Land Court at Thika** for hearing and determination. This move was necessitated by the 1st Respondent’s Application dated 23/04/2025, which sought to have the suit dismissed for want of jurisdiction under Section 7 of the Magistrates’ Courts Act, supported by a Valuation Report placing the suit property at Kshs 45,500,000, a figure that ostensibly ousts the statutory pecuniary jurisdiction of the Magistrate’s Court. 8. That despite the Applicants filing a Replying Affidavit accompanied by a competing Valuation Report assessing the land at Kshs 13,073,358.84, the Respondents have persisted in prosecuting their Application for dismissal. The Applicants are reasonably apprehensive that should the Ruiru Trial Court proceed to deliver its Ruling on 20/08/2025 as scheduled, the suit may be dismissed, thereby rendering the pending Application for transfer to the Environment and Land Court currently slated for mention on 9/12/2025 extinguished, moot, and a mere academic exercise. 9. The Applicants further aver that the Respondents’ actions are calculated to frustrate the cause of justice and delay the finalization of the matter through procedural technicalities. Consequently, unless this Application is heard during the August Vacation and a stay of proceedings is granted, the Applicants stand to suffer irreparable prejudice as the substratum of their intended transfer will be rendered nugatory. It is, therefore, in the interest of justice and the over-arching principles of equity that this Court intervenes to preserve the integrity of the suit and the utility of the pending transfer application. 10. The Supporting Affidavit is sworn on even date by **Daniel Ndirangu Gachihi**, the 1st Applicant, who confirms he is fully conversant with the facts of the case and is authorized by the 2nd Applicant to depose to the matters therein. He states that the Applicants instituted a transfer application dated 25/04/2025, which is annexed and marked as “**DNG-1”**, seeking to move **Ruiru CMCC No. E084 of 2025** to the **Environment and Land Court at Thika**. This transfer request was a direct response to the 1st Respondent’s Application dated 23/04/2025, annexed as “**DNG-2”**, which sought to dismiss the suit for want of jurisdiction under Section 7 of the Magistrates’ Courts Act. 11. The deponent highlights a significant discrepancy in the valuation of the suit property, noting that while the 1st Respondent submitted a report valuing the land at Kshs 45,500,000, the Applicants filed a Replying Affidavit and a competing Valuation Report, annexed as “**DNG-3”**, which assessed the property at Kshs 13,073,358.84. Despite this contradiction, the Respondents have continued to push for a dismissal of the suit. Gachihi expresses a grave apprehension that the Ruiru Trial Court, which has scheduled a Ruling for 20/08/2025, will deliver a decision that renders the pending transfer application set for mention on 9/12/2025 nugatory and a mere academic exercise. 12. He further deposes that the Respondents are employing delay tactics and procedural maneuvers to frustrate the finalization of the matter and deny the Applicants justice. He emphasizes that the current application is of extreme urgency and must be heard during the August Recess/Vacation to prevent the delivery of the scheduled Ruling in the lower Court. The affidavit concludes by asserting that unless a stay of proceedings is granted, the Applicants will suffer tremendous prejudice, and it is therefore in the interest of justice for the Court to grant the orders sought without unreasonable delay. 13. The Application is opposed vide a replying affidavit sworn on 22/08/2025 by Lee Gachari, the Legal and Compliance Officer of the 1st Respondent, ATC Kenya Operations Limited. 14. The 1st Respondent avers that the Applicants' application is frivolous, vexatious, and a gross abuse of the Court process. It is the 1st Respondent’s contention that the application is a calculated maneuver intended solely to delay the delivery of a pending Ruling in **Ruiru Chief Magistrate’s Court Civil Suit No. E084 of 2025** and to frustrate the fair and expeditious conclusion of that litigation. 15. The deponent further clarified the background of the dispute, noting that the Applicants originally instituted the matter in the Ruiru Chief Magistrate Court via a Plaint dated 23/01/2025, pleading claims of trespass against the Respondents. This original Plaint is specifically referenced and annexed to the affidavit as exhibit **"LG-1"**. 16. Neither the 2nd and 3rd Respondents filed any responses however the 3rd Respondent filed submissions dated 9/01/2026. On their part, the Applicants filed their submissions dated 31/10/2025. I have considered the submissions. **Final Determination** 1. The central issue for determination is whether the Applicants have satisfied the threshold for the grant of a stay of proceedings in **Ruiru CMCC No. E084 of 2025** pending the determination of their transfer application. This necessitates a dual inquiry: first, whether there is a prima facie case for the transfer of the suit to the Environment and Land Court (ELC) based on pecuniary jurisdiction; and second, whether the delivery of the scheduled Ruling in the lower Court would render the Court's ultimate decision on transfer nugatory. 2. The application is anchored on Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, alongside Sections 1A, 1B, and 3A of the Civil Procedure Act, which embody the overriding objective to facilitate the just, expeditious, and cost-effective resolution of disputes. Additionally, Section 7 of the Magistrates’ Courts Act is pivotal, as it defines the financial limits of the lower Court. 3. On the power to stay proceedings I will rely on the landmark case of **Global Videotext Limited v. Kenya Revenue Authority [2018] eKLR**, the Court emphasized the discretionary nature of stay orders, stating: ***"The power to stay proceedings is a discretionary one and must be exercised judicially and with a view to ensuring that the ends of justice are met. It is meant to ensure that the Court’s process is not abused and that the fruits of a successful application are not rendered a mere academic exercise."*** 1. On jurisdiction and transfer, the dispute before this Court is over the land's value the Respondent on one side holding that it is valued at Kesh 45.5M vs Kshs 13M of the applicant and this is a fundamental issue. In **Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others [2012] eKLR**, the Supreme Court held: ***"A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law."*** 1. On preventing academic exercises, the Applicants argue that a dismissal in Ruiru would extinguish the Thika application. This mirrors the principle in **Reliable Electrical Engineers Ltd v. Mantrac Kenya Limited [2006] eKLR** where the Court held that: ***"If the stay is not granted and the proceedings in the lower Court are allowed to proceed to a conclusion, the intended appeal or application will be rendered nugatory as the substratum of the same will have been destroyed."*** 1. Legal scholars often argue that procedural technicalities should not overshadow substantive justice, a principle enshrined in Article 159(2)(d) of the Constitution of Kenya. As noted in ***Kuloba’s Courts and Law in Kenya*,** [**Nairobi :**](https://opac.ndu.ac.ke/cgi-bin/koha/opac-search.pl?q=pl:%22Nairobi%20%3A%22)[**Oxford University Press,**](https://opac.ndu.ac.ke/cgi-bin/koha/opac-search.pl?q=Provider:Oxford%20University%20Press%2C)the power of transfer is a corrective mechanism to ensure that suits are adjudicated by Courts possessing the requisite statutory competence. **Disposal Orders** 1. The Court finds that there is a genuine dispute regarding the pecuniary jurisdiction of the Ruiru Magistrate’s Court. Should the lower Court deliver a Ruling on jurisdiction before this Court determines the suitability of a transfer, the Applicants risk the total dismissal of their suit. Such an outcome would render the pending transfer application “**DNG-1”** moot. 2. While the 1st Respondent characterizes the Motion as frivolous and vexatious, the conflicting valuation reports suggest a substantial question of law that requires the ELC’s intervention to preserve the integrity of the judicial process 3. I will therefore make the following orders: 4. ***An Order of Stay of Proceedings is hereby issued in respect of Ruiru Chief Magistrate’s Court, Civil Suit No. E084 of 2025, staying all activities including the delivery of the Ruling which was scheduled for 20/08/2025.*** 5. ***The said stay shall remain in force pending the hearing and final determination of the Application dated 25/04/2025 for the transfer of the file to the Environment and Land Court at Thika.*** 6. ***The Application for Transfer dated 25/04/2025 be mentioned on 22/07/2026 for disposal on priority.*** 7. ***Costs of this application shall abide the outcome of the Transfer Application.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS AT THIKA ON THIS 13TH DAY OF JULY 2026.** **………….…………..** **MOGENI J** **JUDGE** **In the presence of:** …………………………………………………….. for the Applicants ………………………………………….………….for 1st Respondent …………………………………………………….for 2nd Respondent …………………………………………………….for 3rd Respondent Mr. Melita - Court Assistant **…………………….** **MOGENI J** **JUDGE**