https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1302

Ole Basi v Land Registrar, Transmara West, East & South & 3 others (Civil Application E145 of 2025) [2026] KECA 1302 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1302 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E145 of 2025 JM Mativo, MB Kairaria & AI Hassan, JJA July 10, 2026 Between Joseph Leteipa Ole Basi Applicant and The Land Registrar, Transmara West, East & South 1st Respondent The Hon Attorney General 2nd Respondent and Mola Ole Yasi 1st Interested Party Ole Kento Ole Yasi 2nd Interested Party (Being an application for injunction/or stay of execution pending the hearing and determination of Civil Appeal No. E152 of 2025 from the judgment and decree of the Environment and Land Court of Kenya at Kilgoris (M. N. Mwanyale, J.) dated 30th July 2025 in ELC Petition No. E007 of 2024) Ruling 1.A concise history of the litigation which triggered the application dated 23rd December 2025, the subject of this ruling is necessary in order to contextualize the parties’ diametrically opposed submissions. Luckily, this background is largely common ground or uncontested. Briefly, the applicant’s Land Reference Number Transmara/Ololchani/124 borders the interested parties’ Land Reference No. Transmara/Ololchani /96. A boundary dispute arose between the parties. The applicant’s beef was that the interested parties were trespassing into his land. By a plaint dated 18th November 2020, the applicant sued the interested parties at the Environment and Land Court (ELC) at Kilgoris in ELC No.36 of 2021. Upon hearing the suit, in the ensuing judgment, the trial court directed the Land Registrar and the Surveyor to resolve the boundary dispute within 90 days from the date of the judgment. In compliance with the said decision, the Deputy Registrar of the Court and the 1st respondent proceeded to the site. At the conclusion of the exercise, the 1st respondent in its report dated 12th May 2026 concluded as follows:“The Registry Index Map (R.I.M) does not conform to the ground occupation of the plaintiff and the defendants. If the Registry Index Map (R.I.M) is implemented on the ground, it would interfere with the boundaries of the neighbouring parcels of land and which do not have a dispute with the subject parties and have never registered the same with the Lands Registry, Transmara. The said parcels of land that would be interfered with if R.I.M is implemented on the ground are Parcels No. Transmara/Ololchani/641, 738, 639, 639, 640,95, 94, 29, 30, 460,46, and 271.The boundary which showed visible sisal plants was adopted as the one separating the subject parcels of land. The same can be referred to the report dated 6th June 2022 and filed in court on 8th June 2022.” 2.Though aggrieved, the applicant did not appeal against the said decision. Instead, the applicant filed a Constitutional Petition dated 19th July 2024 against the respondents before the ELC, Kilgoris, being ELC Petition No. E007 of 2024 inter alia accusing the Land Registrar of not according him a fair hearing, misrepresentation, relying on a previous unknown report and general assumptions, errors and omissions. He cited breach of his Constitutional rights, mainly Article 40 of the Constitution. The appellant prayed for: (a) a declaration that the process leading to the boundary identification report conducted by the 1st respondent on 12th May 2021 was unlawful, null and void; (b) an order of mandamus compelling the 1st respondent to conduct a fresh boundary identification in accordance with the law, (c) costs of the suit, and (d) any other consequential relief and orders. 3.In the impugned judgement dated 30th July 2025, Mwanyale J. was categorical that the boundary dispute was previously determined in Kilgoris ELC Case No. 36 of 2021. The learned judge stated:“27.The question arising is whether the ELC exercising its jurisdiction to hear constitutional petition can entertain issues that were canvassed before a court of concurrent jurisdiction in a civil claim?…29.… it follows that this court lacks jurisdiction to deal with the issues raised in this petition including the issue of res judicata and/or other issues of the merits of this petition as framed above.30.The court finds that this petition ought to be struck out, but since it is an abuse of the court process the petition is thus dismissed, with costs to the Respondents and the Interested Parties...” 4.Aggrieved by the above verdict, the applicant moved this Court vide an application dated 23rd December 2025, the subject of this ruling brought under Rules 20, 5 (2) (b) and 49 of the Court of Appeal Rules, 2022 seeking orders that: (a) pending hearing and determination of Civil Appeal No. El52 of 2025, this Court stays execution of the judgment and decree issued by Mwanyale, J. on 30th July 2025 at Kilgoris Environment and Land Court ELC Petition No. E007 of 2024; (b) pending hearing and determination of Civil Appeal No. E152 of 2025, this Court grants a temporary injunction restraining the respondents and the interested parties whether by themselves, their agents, servants and/or anybody acting under their directions or claiming against/through them from selling, transferring, charging, entering upon, constructing structures, cultivating, fencing and/or in any way interfering with the current status of the suit property between Land Parcel Number Transmara/Ololchani/96 and 124 as per the boundary dispute report dated 12th May 2023; (c) in the alternative, pending hearing and determination of Civil Appeal No. El52 of 2025, this Honorable Court be pleased to issue orders preserving the suit property which includes orders of status quo that is, no party is allowed to fence, take possession and/ or put up structures on the disputed portion; (d) costs of the application to abide the outcome of the Civil Appeal No. E152 of 2025. 5.The application is premised on the grounds on its face and the applicant’s supporting affidavit dated 23rd December 2025. The salient grounds urged are: (a) dissatisfied with dismissal of ELC Petition No. E007 of 2024, the applicant filed Civil Appeal No. E152 of 2025; (b) the applicant was not involved in the process that yielded the report dated 12th May 2023 and consequently hived off approximately 30.03Ha (75 acres) from his Land Parcel Number Transmara/Ololchani/124 and joined it to the interested parties' Land Parcel Number Transmara/Ololchani /96; (c) on 19th December 2025, the interested parties with the protection of the police officers from Kilgoris Police Station invaded the disputed portion, fenced it off and are now putting up structures which actions are likely to interfere and/or alter natural features which were used boundaries between Land Parcel Number Transmara/Ololchani /124 and 96; (d) the interested parties’ actions are aimed at creating false occupation, disturbing the state of the suit property and altering natural features (boundaries) on the ground so as to render his appeal nugatory; (e) his appeal raises triable issues requiring adjudication by this Court; (e) this application has been brought without any unreasonable delay; (f) if the orders sought are granted, the respondents will not be prejudiced; (g) it is in the interests of justice that the application be allowed. 6.The 1st respondent filed a replying affidavit dated 31st December 2025 sworn by Tom Chepkwasi, the District Land Registrar. The salient averments are:(a)the boundary dispute between the two properties has been outstanding since 2020;(b)that on 6th December 2023 he visited the ground and ascertained existence of visible errors which required rectification, the disputed area was vacant except for a church which was alleged to belong to the applicant’s family member; and(c)he prepared a boundary report dated 12th May 2023 in which he concluded that the Registry Index Map (RIM) does not conform to the ground occupation, and, if the RIM is implemented on the ground, it will interfere with the boundaries of the neighboring 12 parcels of land which do not have a dispute with the parties herein. 7.In response to the application, the interested parties filed an undated replying affidavit sworn by Mola Ole Yasi, the 1st interested party on behalf of himself and the 2nd respondent essentially contending that: (a) the applicant had filed a petition dated 19th July 2024 which was dismissed vide a judgment dated 30th July 2025; (b) the ELC while dismissing the petition did not order any of the parties to do anything or refrain from doing anything or to pay any sum; (c) the judgment sought to be stayed was a negative order which is incapable of being stayed; (d) the suit involved a boundary dispute between number Transmara/Ololchani /96 and 124 which was resolved by the Land Registrar’s letter dated 6th June 2022, a fact known to the applicant; (e) the applicant has not demonstrated that he has an arguable appeal and that the appeal will be rendered nugatory. 8.The 1st interested party filed a further affidavit dated 15th January 2026 in response to the 1st respondent’s replying affidavit. The key averment is that the 1st respondent confirmed that the boundaries are well demarcated on the ground and have not been altered, therefore, the applicant’s application is devoid of merit. 9.The applicant’s counsel filed written submissions dated 20th January 2026 essentially arguing two grounds: (a) that the appeal has high chances of success; (b) if the order directing the Land Registrar to remove the restriction is executed, the interested party will dispose the property to a 3rd party. He urged this Court to grant the orders sought for the interests of justice. 10.In his written submissions dated 22nd January 2026, the 1st and 2nd interested parties counsel cited numerous decisions among them Joseph Gitahi Gachau & Ano. vs. Pioneer Holdings (A) Limited & 2 Others [2009] eKLR (Civil Application 124 of 2008) and Cabinet Secretary, Ministry of Health Vs. Aura & 13 Others (Civil Application E583 of 2023) [2024] KECA 2 (KLR) (19 January 2024) (Ruling) to urge that the applicant has not demonstrated the existence of an arguable ground. Further, there is no dispute that each party is still in occupation of their respective parcels of land, therefore, the applicant does not satisfy that he has an arguable appeal. 11.Addressing the question whether absent of stay, the applicant’s appeal will be rendered nugatory, counsel cited Stanley Kangethe Kinyanjui vs. Tony Ketter 5 Others [2013] KECA 378 (KLR) and David Morton Silverstein vs. Atsango Chesoni, Civil Application No. NAI 189 of 2001 to urge that the applicant has not demonstrated that if what is sought to be stayed in this application is irreversible. He also submitted that the trial court dismissed the applicant’s petition, therefore, the applicant seeks to stay a negative order and the applicant has not demonstrated that his appeal will be rendered nugatory. 12.It is trite law that an applicant under Rule 5 (2) (b) of the Court of Appeal Rules, 2022 seeking a stay of execution, stay of proceedings or an injunction must satisfy the Court on the "twin principles". The very first limb of these principles dictates that the applicant must demonstrate the existence of an "arguable appeal" (meaning an appeal that is not frivolous). (See Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR). An arguable appeal is not one that must necessarily succeed but one which deserves to be fully argued before the Court; it simply must not be frivolous. This Court has in numerous decisions explicitly emphasized that a single bona fide arguable ground of appeal is sufficient to meet this threshold. (See Kihara vs. Ajele & 2 Others [2021] KECA 104 (KLR)). It is also an established position of law that in determining whether an applicant has an arguable ground, this Court is constrained not to make final or definitive determinations of law or fact, as doing so would embarrass the ultimate hearing of the main appeal. 13.In support of his petition before the trial court, the applicant in his supporting affidavit annexed inter alia a copy the judgment issued in Kilgoris ELC Case No. 36 of 2021 and a copy of the boundary report dated 12th May 2023, a copy of a court order. It is evident that the subject matter of this dispute was determined in ELC Case Number 36 of 2021. Aggrieved by the said decision, the applicant opted to file a constitutional petition. The trial judge, in the earlier cited excerpt was categorical that the ELC while exercising its jurisdiction to hear a constitutional petition cannot entertain issues that were canvassed before a court of concurrent jurisdiction in a civil claim. Evidently, the question whether the issues urged in the petition were res judicata will be live questions before the bench that will hear the appeal. Whether or not the applicant could competently seek to overturn a decision of a court of concurrent jurisdiction by filing a constitutional petition will be a live question during the hearing of the appeal. We are fully conscious that we should refrain from making definitive findings on questions of fact or law at this stage, therefore, we shall leave the answers to the bench that will hear the appeal. It will suffice for us to state that we are clear in our minds that the applicant has not demonstrated that he has an arguable appeal to merit the prayers sought under Rule 5 (2) (b). Having found that the applicant has not satisfied that he has an arguable appeal, it will serve no useful purpose for us to address the nugatory aspect. Accordingly, it is our finding that the applicant’s application dated 23rd December 2025 lacks merit and is hereby dismissed with costs to the respondents and the interested parties. DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF JULY, 2026.J. MATIVO................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.