https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10645

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E077 OF 2024** **GRACE NG'ENDO KANGORI ………..………………………...….……1st APPLICANT** **PAUL KAMAU KANGORI……….………………………………………2nd APPLICANT** **VERSUS** **CATHOLIC DIOCESE OF MURANG'A.………………….......................RESPONDENT** **RULING** 1. The applicant filed a Notice of Motion dated 29th October, 2025 seeking the following orders: * + 1. Spent. 2. Spent. 3. That this Honourable Court be pleased to grant a stay of execution of the Judgment issued by Appellate Court in Kerugoya Civil Appeal No. E077 of 2024 on 7th October 2025 pending the hearing and determination of the intended ELC in court of competent jurisdiction to determine ownership of land parcel No. Kirinyaga/Gathigiriri/822. 4. That this Honourable court be pleased to grant any other orders and or relief befitting the circumstances. 5. That the costs of this application be in the cause. 2. The application is supported by the supporting affidavit of the applicants setting out the applicant’s case that they intend to file a suit in the Environments & Land Court which has the sole jurisdiction to hear and determine land case disputes, and as such we pray for stay. Their application is based on the contention that, the only way to solve issue of ownership of land parcel No. Kirinyaga/Gathigiriri/822, is if court of competent jurisdiction hears and determines the land case. 3. The applicants aver that the land parcel in question was not sold in 1984 and the Respondent did not take possession of the said land, as the registered proprietor continued to have actual physical possession and even charged the land with KCB in 1985. The possession and purchase of the land parcel in question offends the principle of non-contradiction, the Respondents could not have bought the land and allowed the deceased Kangonri Githinji to charge it, such allegation is an absurdity & should be treated with contempt it deserves. 4. The applicants aver that the continued possession and registration of the land in the deceased name, Kangori Githinji was adverse to the claim of the Respondents and being in the actual land possession of parcel Kirinyaga/Gathigirii/822 for more than 34 years acquired adverse claim against the Respondent as purchaser which is vehemently denied. Lastly, the applicants aver that if stay of execution is not granted. They stand to suffer unbearable loss. The intended ELC suit will be also be rendered nugatory as we are apprehensive that the Respondent may dispose the land to third parties. 5. The Respondent filed a Replying Affidavit responding that that a close inspection of the Application and accompanying affidavit reveals that no plaint or application has yet been filed at the Environment and Land Court since 25th October, 2025 or since judgement was delivered by this Honourable Court. 6. The Respondent avers that the court will note from the application that the Appellants/Applicants wish to file a suit in court of same jurisdiction being the Environment and land Court which means that it is improper for this court to issue Stay Orders as it will be impractical to actualize being that this court and Environment and Land Court are both courts of same rank and status. The Appellants/Applicants have not exercised or do not intend to exercise their right to appeal. Lastly, the respondent avers that the application before this court is misplaced as this Court is functus officio and there is nothing to be stayed or set aside. 7. The Applicant filed a Supplementary Affidavit urging that their application is merited and with likelihood of success when the matter is heard and determined in Kerugoya ELC Suit No. E043 of 2025 which is of competent jurisdiction. Further, they aver that if stay of execution is not granted they stand to suffer unbearable loss. The suit will be rendered nugatory as they are apprehensive that the Respondent may dispose the land to third parties. Lastly, they aver that the Respondents will not suffer any prejudice if the Honourable issues stay of execution & Inhibition against land parcel No Kirinyaga/Gathigiriri/822. **Applicants’ submissions** 1. The Applicants/Appellant claim & vide their annextures which has not been disputed by the Respondents clearly indicate that the Land Parcel No. Kirinyaga/Gathigiriri/822 was registered in the name of their late father Kangori Githinji. The Applicants are the administrators to their father's estate & as such as duty bound to protect & preserve their father's estate for distribution to his dependents. The land going their father owned at the time of his death going to third parties will not only be disinheriting them but also occasion substantial economic loss as land is major factor of production. 2. The applicants submit that there are issues that they need addressed in an ELC Court as it is the only Court of competent jurisdiction to hear and determine land question matters. 3. The applicants submit that the respondent will suffer no prejudice if the court issued order of stay for the ELC court. Conversely, the decline of stay will make the applicants suffer irreparable damage as their family land will be taken away by third parties who are strangers to them. **Respondent submissions** 1. The respondent submit that the application is not for stay of execution of the Judgement of this Honourable Court dated October 7th, 2025 pending appeal but rather the Application seeks to indefinitely stay the judgment pending filing of another matter before the ELC Court Kerugoya. 2. They submit that what the present application envisions is unprecedented for reason the Applicants wish for this court to issue stay orders while there is no intention by the Applicants to appeal. What the Applicants are seeking is to stay this matter indefinitely as they organize their affairs and file a matter before the ELC Court over the same issues raised at the trial court and this Honourable Court. 3. The Application does not have a draft Memorandum of Appeal which would allow this Honourable Court to exercise its discretion and assess level of damage to be suffered by the Applicants in case stay orders are not granted. The Applicants have also confirmed that they do not wish to explore the Appeal process. The Applicants have now lost before the trial court by a judgement of Hon Martha Opanga and this Honourable Court. In fact, the applicants have been indolent as they have never filed any appeal or fresh matter since October 25th 2025 to date. 4. The Applicants have not provided proof of what substantial damage may result if the orders in this application are not granted. The Respondents are in possession of the suit land LAND PARCEL NUMBER KIRINYAGA/GATHIGIRIRI/822 having bought the same from the late KANGORI GITHINJI - Deceased vide a letter of consent. All the issues the Applicants are seeking to litigate on in the purported new matter have been well canvassed both at the trial court and this Honourable Court. 5. Lastly, the respondent submits they are perplexed why the Applicants having now chosen to file a fresh matter before the ELC Court would not approach the said court for redress considering the High Court and ELC Court are two courts of same rank. The Applicants are clearly abusing the court process as Order 42 envisions a party to intend to file an appeal. It’s not enough in our view for a party to just want to file an application for stay without annexing a copy of draft appeal. **Issues** 1. The issues for determination are : 1. Whether this Court is *functus officio.* 2. Whether the Applicants have satisfied the conditions for grant of stay of execution pending intended proceedings before the Environment and Land Court. 3. Who should bear the costs of the application. **Whether this Court is functus officio** 1. It is not disputed that this Court delivered judgment in the appeal on 7th October 2025. The Applicants are not seeking stay pending appeal to a higher court. Rather, they seek stay pending the filing and determination of a fresh suit before the Environment and Land Court. 2. Having delivered its judgment in the appeal, this Court became functus officio save for residual powers donated by law such as correction of clerical errors, review where applicable, or dealing with applications incidental to an appeal to a higher court. 3. The present application does not seek stay pending appeal. It seeks stay pending fresh proceedings before another court. It is outside the purview of Order 42 Rule 6 of the Civil Procedure Rules. **Whether the Applicants have met the conditions for stay of execution** 1. Order 42 Rule 6 contemplates stay pending appeal and not stay pending commencement of fresh proceedings. The Applicants are effectively inviting this Court to halt the implementation of a valid judgment indefinitely while they explore fresh litigation. Such an order would offend the principle of finality in litigation. 2. Further, the Applicants have not demonstrated any exceptional circumstances warranting the exercise of this Court’s discretion in their favour. The issues they seek to raise regarding ownership, possession and adverse possession appear from the record to have substantially featured in the proceedings before the subordinate court and in this appeal. 3. The Respondent has a lawful judgment in its favour, and he is entitled to the fruits of the judgment. The Applicants have not shown sufficient basis for stay of execution of that judgment, as there is no appeal therefrom. Moreover, the Applicants have not offered any security for the due performance of the decree as required under Order 42 Rule 6(2)(b) of the Civil Procedure Rules. **ORDERS** 1. Accordingly, for reasons set out above, the Court finds that the application lacks merit and it is dismissed. 2. The appellant shall pay the costs of the application to the Respondent. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Kuria Mburu for the Appellant. Mr. Mutiso for Mr. Kamau for Respondent.