https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4572

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **E.L.C. O.S. NO. E010 OF 2026** **BENADO MWANZIA IGUNA...................................PLAINTIFF/APPLICANT** **VERSUS** **ISACK MUGO NYAGA.....................................DEFENDANT/RESPONDENT** **RULING** The Plaintiff/Applicant moved this Court by a Chamber Summons dated 26th March 2026 principally seeking an order of stay of execution of the confirmed grant issued on 25th February 2026 in Siakago SPM Succession Cause No. E178 of 2024 relating to Land Parcel No. EMBU/GANGARA/1306 pending the hearing and determination of this suit. The application is premised on the grounds that the Applicant purchased one acre out of Land Parcel No. EMBU/GANGARA/1306 from the late Nyaga Ngari, the father of the Respondent, and that although the Respondent was aware of that transaction, he failed to disclose the Applicant's interest during the succession proceedings. The Applicant contends that the confirmed grant distributed the suit property to other beneficiaries without recognizing his purchaser's interest, thereby exposing him to the risk of dispossession. He therefore urges the Court to preserve the suit property pending determination of the Originating Summons. The Respondent opposes the application through a Replying Affidavit sworn on 27th April 2026. He denies that the Applicant ever purchased any portion of the suit property and challenges the authenticity of the alleged sale agreement. He avers that the Applicant is neither a beneficiary of the deceased's estate nor entitled to any interest in the land, maintaining instead that the Applicant merely occupied part of the land with the permission of the Apostolic Church before later leaving the church. He further contends that the Applicant is a trespasser and that this Court lacks jurisdiction to interfere with orders made in the succession proceedings. When the application came up for directions on 6th May 2026, both parties, who appeared in person, agreed that it be determined on the basis of the affidavits already filed. Having considered the application, the affidavits on record and the applicable law, the sole issue for determination is whether the Applicant has established a basis for granting an order staying execution of the confirmed grant issued in Siakago Succession Cause No. E178 of 2024. The Applicant seeks a stay of execution of a confirmed grant issued by the Succession Court. The first difficulty with the application is that no decree, order or proceedings from the succession cause have been exhibited before this Court. Apart from the Applicant's deposition that a grant was confirmed on 25th February 2026, there is no material demonstrating the precise terms of the confirmation or the stage of implementation. A court can only exercise its discretion on the basis of evidence placed before it. Under sections 107 and 109 of the Evidence Act, the burden rests upon the party asserting a fact to prove it. Mere allegations in an affidavit cannot substitute proof. Secondly, the Applicant invokes the jurisdiction of this Court to stay the execution of orders issued by the Magistrate's Court exercising probate jurisdiction. The Environment and Land Court derives its jurisdiction from Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. While this Court has jurisdiction to determine disputes concerning interests in land, it does not sit as an appellate or supervisory court over probate proceedings unless jurisdiction is expressly conferred by law. A confirmed grant issued under the Law of Succession Act remains valid and effective until set aside, revoked or otherwise varied by the court exercising succession jurisdiction or on appeal. It would therefore be inappropriate for this Court, through an interlocutory application in a land matter, to stay the execution of a confirmed grant issued by another court exercising a distinct statutory jurisdiction. The principle that jurisdiction is everything was firmly settled in **Owners of the Motor Vessel** **'Lillian S' v Caltex Oil (Kenya) Ltd(1989) KECA 48 (KLR**) where the Court held that once a court finds that it lacks jurisdiction, it must down its tools. Consequently, this Court cannot grant orders whose effect would be to suspend or interfere with the implementation of orders issued by the succession court. Further, even assuming jurisdiction existed, the Applicant has not demonstrated the legal basis upon which a stay of execution should issue. An order of stay is an equitable and discretionary remedy. The applicant must demonstrate substantial loss and lay a factual foundation for the exercise of the court's discretion. The Court of Appeal and the High Court have consistently held that substantial loss is the cornerstone of an application for stay. See **James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eKLR**. The Applicant merely expresses apprehension that he may be dispossessed. He has not demonstrated any imminent execution process, transfer, eviction or other action incapable of being remedied should he ultimately succeed in his claim. The Court also notes that the Originating Summons appears to be founded upon the Applicant's alleged purchaser's interest in the suit property. Whether there existed a valid sale agreement, whether the Applicant acquired an enforceable interest against the deceased's estate, and the legal consequences thereof are substantive issues reserved for determination at the hearing upon production and testing of evidence. At this interlocutory stage, the Court cannot make findings on those contested questions. It is equally significant that if the Applicant believes that his purchaser's interest was omitted during the succession proceedings, the Law of Succession Act provides appropriate remedies before the probate court, including applications touching on confirmation or revocation of grants where circumstances so warrant. The present application seeks relief which falls outside the proper scope of these proceedings. In the end, I find that the Applicant has failed to establish a legal or factual basis upon which this Court can stay the execution of the confirmed grant issued in Siakago SPM Succession Cause No. E178 of 2024. The application is therefore devoid of merit. Accordingly, the Chamber Summons dated 26th March 2026 is hereby dismissed. Given that both parties are unrepresented and the substantive suit remains pending for determination, each party shall bear his own costs of the application. Orders accordingly **DATED, DELIVERED AND SIGNED AT EMBU THIS 16TH DAY OF JULY, 2026** **……………………….** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Plaintiff/Applicant in person-present. 2. Defendant/Respondent in person-present. 3 Ruth C/A-present.