https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1373

Kedong Ranch Ltd v Kingsholme Ltd & another (Civil Appeal (Application) E093 of 2026) [2026] KECA 1373 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1373 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E093 of 2026 JM Mativo, MB Kairaria & AI Hassan, JJA July 10, 2026 Between Kedong Ranch Limited Applicant and Kingsholme Limited 1st Respondent Mlasa Limited 2nd Respondent (Being an application for stay of proceedings and execution pending appeal from the ruling and order of the Environment and Land Court of Kenya at Naivasha (M. C.Oundo, J.) dated 21st May 2026 in ELC Case No. E007 of 2025) Ruling 1.Kedong Ranch Limited (the applicant) is aggrieved by the ruling rendered by Oundo, J. on 21st May 2026 in Naivasha Environment and Land Court (ELC) Case No. E007 of 2025. It has appealed to this Court against the said decision. The applicant is now before this Court vide its application dated 26th May 2026, the subject of this ruling pursuant to Rules 1 (2), 5 (2) (b) of the Court of Appeal Rules, 2022. A concise background to the impugned ruling is necessary in order to properly contextualize the diametrically opposed arguments urged by the parties herein in support of their respective positions. Luckily, this history is principally common ground or uncontested. 2.In the impugned ruling, Oundo, J. determined three applications. The 1st application dated 12th February 2025 was filed by the 1st respondent against the applicant. Its complaint was that it had sold land to the appellant but the sale explicitly excluded a borehole, a lagoon and service roads (the excluded property) safeguarded by a registered easement, whose aim was to ensure continued water supply for their crops. It averred that subsequent to the sale, the applicant began fencing the property in a way that would physically cut off its access to water and destroy underground pipes, which, it argued would threaten its business and the livelihoods of its 2,000 workers. Accordingly, it prayed for an injunction restraining the applicant from fencing, occupying, or interfering with the water infrastructure pending the determination of the case. 3.Upon being served, the applicant did not file a reply to the said application. Instead, it filed the application dated the 19th February 2025, (the second application) premised on section 6 (1) of the Arbitration Act seeking orders that the proceedings be stayed and the matter be referred to arbitration contending that the court lacked jurisdiction to entertain the case. The applicant’s germane ground was that the suit was founded on a Long Term Lease Agreement dated 1st August 2018 and an Easement Agreement dated 24th June 2019 which contained mandatory arbitration clauses. It claimed that the respondent’s lease expired on 28th February 2025, and the interim status quo order was being misused to prevent the applicant from taking possession of its own land. The applicant prayed that the status quo order be discharged, that the proceedings be stayed and the parties be compelled to resolve the dispute before an arbitrator under Section 6 of the Arbitration Act. 4.In response to the application, the 1st respondent maintained that the dispute was grounded on the Agreement for Sale dated 21st June 2018, which contained no arbitration clause. Therefore, the applicant was improperly attempting to invoke clauses from the Long-Term Lease Agreement dated 21st June 2019 and Easement Agreement dated 1st August 2019 to muddle the issues. In any event, the 1st respondent contended that the applicant was not a party to the said agreements. 5.The 1st respondent argued that a status quo order was necessary because the applicant was fencing the property which would cause irreparable loss by wilting crops and cutting off water supply to 2,000 workers. It also argued that, the Lease and Easement Agreements allowed a party to seek interim conservatory measures from a court, meaning the court could keep the injunction in place even if the rest of the case moved to arbitration. 6.The third application dated 17th March 2025 was filed by the 1st respondent seeking orders that the applicant be found guilty of contempt of the status quo order. The 1st respondent claimed that on 17th March 2025, the applicant led by its Chairman, Stanley Kinyanjui, ignored the status quo order by storming the property with armed police and hired goons to evict the 1st respondent. It claimed that the applicant cut down trees and brought livestock including cows and sheep into the land thereby interfering with the flower farm's operations. It urged the Court to find that the applicant was in contempt of the said order and commit Stanley Kinyanjui to civil jail for 6 months, and bar the applicant from being heard in Court until the contempt is purged. 7.In response to the application for contempt, the applicant and Stanley Kinyanjui denied having stormed the property, stating that on 28th February 2025 they took possession of only 9 empty houses because the applicant’s lease had legally expired by effluxion of time. They stated that they had not interfered with the easement because the 1st respondent still had unhindered access to the borehole and the lagoon. They contended that it had only installed poles parallel to the boundary and it had not blocked water pipes or access roads and the alleged goons were casual labourers clearing overgrown bushes, and that the police officers were part of a pre-existing security arrangement previously agreed upon by the applicant. They also argued that the applicant’s allegations were based on hearsay from an unnamed security manager rather than on the personal knowledge of the legal officer who swore the affidavit. They maintained that the status quo order was meant to protect the easement not to grant the applicant a perpetual lease over land they no longer had a right to occupy. 8.In the impugned ruling, the learned judge in determining the contention that the court lacked jurisdiction on account of the arbitration clause stated:“100.The arbitration clauses the defendant seeks to rely upon are housed in two subsequent documents dated 24th June 2019, which were a Long-Term Lease and the Grant of Easement, both agreements having been executed between Kingsholme Limited and Mlasa Limited, which was a third-party legal entity.101.Arbitration is strictly a creature of consent. It is a fundamental tenet of the law of contract that a party cannot be compelled to arbitrate a dispute unless they have explicitly agreed in writing to do so.…105.Applying the holdings in the authorities herein above, I find that the defendant is a complete stranger to the Long-Term Lease and the Grant of Easement executed between Kingsholme and Mlasa Limited. While the defendant is indeed the owner of the Servient Land, which is burdened by the easement, the personal contract to waive one's right to judicial review and submit to arbitration did not automatically run with the land to benefit a third-party purchaser unless expressly assigned to or agreed to in writing by the Plaintiff.106.Furthermore, the Sale Agreement contains an "Entire Agreement" clause at clause 20. 7, which isolated the terms of the sale and the disputed borders of the excluded properties in that single document, and relied on the jurisdiction of the Kenyan Courts at clause 21.105.The current dispute before this Court is not merely about the usage or maintenance of a water pipe… I find that the dispute touches on land ownership, boundaries, and the constitutional protection of property under Article 40 of the Constitution, wherein under Section 13 of the Environment and Land Court Act, this Court has exclusive, original jurisdiction and therefore, I find that the Defendant cannot hijack or enforce the arbitration clauses buried within ancillary agreements to which it is not a contracting party, consequently, the Defendant's Notice of Motion dated 19th February 2025 seeking a stay of proceedings and a referral of the matter to arbitration is dismissed in its entirety. 9.Regarding the application for contempt, the learned Judge stated:“….125.By entering the land on the 17th March 2025 and engaging in the impugned activities complained of by the plaintiff, the defendant unilaterally decided that the expiration of the Lease-Back agreement took precedence over a judicial command. If the defendant believed the lease's end entitled them to act as they did, nothing prevented them from seeking to vary the status quo order before invading the land. I find that the defendant's conduct was a direct and willful act of defiance against the court and the rule of law.126.It is therefore mandatory that, unless and until a Court order is discharged. It ought to be obeyed and that it is not open to any person or persons to choose whether to comply with or ignore such orders as directed to him or them by a Court of law.…131.The defendant's Chairman. Stanley Kinyanjui, I find, was in blatant, deliberate and intentional violation of the court's dignity, repute and authority wherein his conduct substantially adversely interfered with the substratum of the matter. I thus find him in contempt of the court order of 14th February 2025, which was extended on 10th March 2025, and will accordingly proceed to punish him.” 10.Lastly, regarding the application for injunction dated 12th February 2025, the learned Judge stated:“132.On the last Application, namely whether to grant an injunction order pursuant to the application dated 12th February 2025, the court, having pronounced itself on the issue of "whether it had jurisdiction to hear the matter or to refer it to arbitration", and having noted that the defendant did not file a response to the application based on their application dated the 18th February 2025, and being mindful of the provisions of Article 50 of the Constitution on fair healing, directs the defendant to file its response within 14 days, and the plaintiff shall have 7 days to file their rejoinder.” 11.Aggrieved by the above ruling, the applicant filed the instant application beseeching this Court to stay the proceedings in ELC No. E007 of 2025, Kingsholme Limited & Ano. vs. Kedong Ranch Limited pending the hearing and determination of its appeal against the said ruling. It also prays for stay of execution of the order made on 21st May 2026 in the said case requiring the attendance of Stanley Kinyanjui in Court on 9th June 2026 (now past) for mitigation and sentencing, and directing the applicant to file a replying affidavit to the notice of motion dated 12th February 2025 pending the hearing and determination of its appeal. Lastly, the applicant prays for costs of the application to abide the outcome of the appeal. 12.The respondents filed a further affidavit dated 19th June 2026 sworn by Audrey Namwakira, the 1st respondent’s legal officer in which she averred: (a) the applicant has since purged the contempt of the orders issued on 14th February 2025; (b) on 12th June 2026, the applicant gave possession of the suit property to the respondents and removed its armed guards, goons, personnel and livestock in compliance with the status quo order issued on 14th February 2025; (c) the foregoing was confirmed before the trial court on 18th June 2026 which has since pardoned the applicant’s chairman Stanley Kinyanjui and on the same day the trial court directed the appellant to file its reply to the application for conservatory orders; (d) the foregoing being the position, the applicant’s application has been overtaken by events, and, (e) the Long term Lease and Easements allow a party to seek interim measures of protection from the court, therefore, the prayer for stay amounts to depriving the respondent the right to apply for interim measures of protection from the Court. 13.Both parties filed written submissions which they orally highlighted during the hearing of the application. In support of the application, the applicant’s counsel Mr. Nelson Havi, Senior Counsel, maintained that the applicant has demonstrated that it has an arguable appeal and cited Stanley Kangethe Kinyanjui vs. Tony Keter & Others [2013] eKLR in support of the proposition that an arguable appeal is not one which must necessarily succeed, but one which is not frivolous and ought to be argued fully before the Court. He also cited Dock Workers Union Limited vs. Messina Kenya Limited [2019] eKLR, to buttress his argument that the question whether the ELC could disregard the agreement to arbitrate in the Long Term Lease and Easement Agreement and assume jurisdiction to hear the dispute is an arguable ground. Mr. Havi, Senior Counsel also submitted that the question whether the Environment and Land Court (ELC) could re-write and re-negotiate the terms for termination of the lease and handover of the property by the 1st respondent to the applicant is an arguable ground. 14.On the nugatory aspect, Mr. Havi, Senior Counsel submitted that as was held in Stanley Kangethe Kinyanjui vs. Tony Keter & Others (Supra) whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen is reversible, or if it is not reversible, damages will reasonably compensate the aggrieved party. He cited Meta Platforms & Ano. vs. Motaung & Ano. [2023] eKLR and The Kenya Hospitals Association & Others vs. The Chief Executive Officer, Kenya Hospital Association & Others, Civil Application No. Nai E449 of 2025 (UR) in support of the proposition that a stay will be ordered where the interlocutory appeal will finally dispose of the case or end the proceedings before the lower court. 15.Mr. Havi, Senior Counsel argued that sentencing of Stanley Kinyanjui for contempt on 9th June 2026 (now past) during the pendency of an appeal is an irreversible outcome that cannot be reasonably compensated with an award of damages.Accordingly, the commencement and continuation of the proceedings will render the appeal nugatory. 16.The respondents’ counsel Prof. Albert Muma, Senior counsel submitted that given the unique facts of this case, the grounds listed in the applicant’s memorandum of appeal though debatable are not arguable. Nevertheless, he acknowledged that as was held in Transouth Conveyors Limited vs. Kenya Revenue Authority & Ano. [2007] eKLR, an applicant need not establish a multiplicity of grounds. Accordingly, counsel opted not to belabor on this issue. 17.Regarding the nugatory aspect, Prof. Albert Muma, Senior counsel cited Stanley Kangethe Kinyanjui vs. Tony Keter & Others (supra) to urge that whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is irreversible, or if it is not reversible, whether damages will reasonably compensate the applicant. Counsel maintained that there is nothing to be stayed in this case because the applicant through its chairman has already appeared before the superior court and purged the contempt. Therefore, the application has been overtaken by events. Consequently, the application is largely moot, and therefore, the applicant’s application cannot be rendered nugatory. 18.Regarding the plea to stay the proceedings before the trial court on grounds that the dispute needs to be referred to arbitration in accordance with the arbitral clause in the Long Term Lease and the Easement Agreements, counsel submitted that the arbitral clauses in the said agreements expressly allow any party to move to court and seek interim measures of protection pending arbitration under Section 7 of the Arbitration Act. Therefore, even if the proceedings were to continue and the interim orders are granted preserving the substratum of the application pending arbitration, the applicant’s appeal will not be rendered nugatory. In any event, the respondents are well within their contractual rights to seek interim relief before the superior court. 19.First, we will address the respondents’ argument that there is nothing to stay in this case because the applicant has since complied with the impugned order and purged the contempt. The 1st respondent maintained that on 12th June 2026, the applicant surrendered the property to the respondents and removed its armed guards, goons, personnel and livestock in full compliance with the status quo order. It also stated that on 18th June 2026, the applicant’s chairman Stanley Kinyanjui personally confirmed the compliance before the trial court and the court pardoned him and the court directed the applicant to file its reply to the application for conservatory orders. These assertions remain uncontroverted. 20.While there is no doubt that this Court can stay a contemplated execution before it starts, we must clarify that the purpose of stay under Rule 5 (2) (b) is to prevent an appeal from becoming infructuous. By logical extension, if the act is done, the stay itself is what becomes infructuous. This Court has consistently held that it cannot grant a stay of execution under Rule 5(2) (b) for an action that has already been completed. This is because a "stay" is intended to suspend an ongoing or future process to preserve the subject matter of an appeal; it is not a tool to reverse or undo a fait accompli. (See this Court’s decision in Mudibo vs. Independent Boundaries and Electoral Commission & 6 Others (Civil Application E134 of 2025) [2026] KECA 919 (KLR) (15 May 2026)). 21.An application to stay a court decision becomes entirely moot and overtaken by events once the underlying order has already been complied with, meaning an appellate court can no longer grant a stay of execution for an act that has already been performed. The purpose of a stay of execution is to prevent irreversible harm and maintain the status quo pending appeal. If a party facing committal for contempt opts to comply with (or "purge") the order during the pendency of their appeal, the threat of committal evaporates, the execution is complete, and there is no longer any live controversy or operative order left to stay. 22.Once a contemnor complies with an order under the threat of contempt, two key legal doctrines blocks him/her from subsequently seeking a stay of the same order. These are (a) Mootness (overtaken by events): A court will not issue an academic or theoretical order. If the order has already been complied with, a stay of execution cannot undo what has already been done because there is no active "execution" left to stop. As was firmly established by the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality vs. Minister of Home Affairs 2000 (2) SA 1 (CC), an issue is moot and overtaken by events if it no longer presents an existing or live controversy. (b) Purging Contempt:By complying, the party has effectively "purged" their contempt. The underlying threat of committal is resolved. Therefore, an application to stay the committal or the original decision serves no legal purpose. This is because if a party has already complied with the terms of an order, the controversy surrounding its immediate execution vanishes. The appellate court will refuse to grant a stay because the outcome will have no practical effect on the parties. 23.This Court in David Nkanata Magiri vs. Bernard Benedict Mungania & 4 Others [2012] eKLR unambiguously stated that an application for a stay of execution cannot be granted where execution had already taken place. Similarly, in Kamindi Self Fridges Supermarkets Limited vs. Kiambu Murutani Company Limited (Civil Application E360 of 2022) [2024] KECA 10 (KLR) (25 January 2024) (Ruling), this Court declined to grant an order of stay maintaining that what the applicant was seeking was to "reverse or undo what had already taken place." Rule 5 (2) (b) does not contemplate such a situation because the jurisdiction is meant to preserve the status quo, not restore it after it has been changed. (See also United Insurance Co Ltd vs.Mercedes Sanchez Ru Tussel [2012] eKLR). By now it is manifestly clear that a stay under Rule 5 (2) (b) is purely preventive as opposed to restorative. We have said enough to demonstrate that the prayer seeking stay, the execution of the order requiring the attendance of Stanley Kinyanjui in Court on 9th June, 2026 (now past) for mitigation and sentencing is moot because he has since complied with the order. 24.Our above finding notwithstanding, we will consider the applicant’s other prayers on merits. The applicant also seeks to stay the proceedings in ELC No E007 of 2025, Kingsholme Limited & Ano. vs. Kedong Ranch Limited pending the hearing and determination of its appeal against the impugned ruling. It also prays for stay of the order directing the applicant to file a replying affidavit to the notice of motion dated 12th February 2025 pending the hearing and determination of its appeal. 25.Both agree that to succeed in an application under Rule 5 (2) (b), an applicant must demonstrate that the appeal is arguable and that an "arguable appeal" is one that raises at least one bona fide issue worthy of consideration by the Court, but which may not necessarily succeed. In determining the question whether an appeal is arguable, this Court is constrained not to make definitive findings of fact or law at this stage to avoid "embarrassing" the bench that will hear the appeal. With this limitation in mind, we have carefully considered the grounds urged by the applicant in its appeal. Whether or not the dispute between the parties is governed by the Agreement for Sale between the applicant and the 1st respondent is an arguable ground just like the interpretation of the entire “Agreement Clause” in the said agreement. Whether or not the dispute between the parties was governed by the Long Term Lease and Easement Agreement is a matter for resolution by the trial court. As both parties correctly observed, an arguable ground is not one that will necessarily succeed. We are persuaded that the applicant has met this threshold. 26.However, as was held by this Court in Elior vs. Njoroge & 8 Others [2026] KECA 1209 (KLR), demonstrating that an appeal is arguable is only the first step. The applicant must also satisfy the second limb of the test: proving that if the Court does not grant the requested order (such as a stay of execution or an injunction), the ultimate success of the appeal will be rendered nugatory (useless, empty, or a mere academic exercise). As was held in Royal Media Services Limited & Ano. vs. Macharia Waiguru [2015] KECA 689 (KLR), whether an appeal will be rendered nugatory is a question of fact to be determined on a case-by-case basis. There is no mathematical or rigid formula. The Court must look at the unique circumstances of each case. 27.The applicant seeks to stay an order requiring it to file a reply to the application dated 12th February 2025. Merely complying with procedural directions such as filing a reply or responding to an application does not render an appeal nugatory. An appellate court cannot grant a stay on a lower court’s order directing a party to file a reply because such an order is a purely procedural, interlocutory instruction. The question whether directions requiring a party to file a reply to an application determines the parties’ substantive rights to qualify the legal threshold required to constitute an appealable "judgment" or order will be a live matter before the bench that will hear the appeal. We are not persuaded that the directions in question merit stay by this Court. We find support in the Supreme Court of India decision in Shah Babulal Khimji vs.Jayaben D. Kania [1981] 4 SCC 8, a foundational judgment that meticulously defined what kinds of interlocutory (temporary/interim) orders qualify as a "judgment" for the purposes of an appeal. The Court explicitly noted that purely routine, procedural orders such as an order granting time to file a written statement, an order directing a party to file a reply, or an order of adjournment do not possess the "traits or trappings of finality." Consequently, they are completely non- appealable, meaning an appellate court holds no legal authority to intervene or stay them. 28.In any event, as was held in Sicpa Securities Sol Sa vs.Okiya Omtatah Okoiti & 2 Others [2018] KECA 613 (KLR), an appeal is only ruined if the consequences cannot be reversed or remedied later. Complying with step-by-step court timelines to submit paperwork keeps the legal process moving safely without touching or destroying the ultimate rights under appeal. In short, filing a reply does not cause irreversible harm. We say no more. 29.Lastly, is the question whether the plea for stay of proceedings is merited? As was held by this Court in Elvis Karee Amario vs. Miki Ng’ang’a Njoroge & 2 Others [2026] KECA 1211 (KLR), “stay of proceedings” as the phrase suggests, is the stoppage of an entire case or a specific proceeding within a case. Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection. (See also Halsbury’s Laws of England, 4th Edition. Vol. 37, at p.330 and p.332). 30.The main ground in support of the plea to stay the proceedings is the existence of an arbitration clause in the Long term Lease and the Easement Agreement. Courts require more concrete evidence of potential harm or prejudice that would arise if the proceedings were to continue. A party seeking a stay of proceedings must demonstrate more than just a subjective feeling of apprehension or fear about the potential outcome of the case. The applicant typically needs to show that proceeding with the case would cause them substantial loss or irreparable harm, which could render their appeal, if successful, nugatory. (See James Mugo Muraya & 2 Others vs. Margaret Wairimu Muraya & Ano. [2025] KECA 1222 (KLR)). As alluded to earlier, the applicant has already fully complied with the status quo order, effectively restoring the disputed property to the 1st respondent. While the appeal may not be prejudiced by complying with the court orders, conversely, declining to stay the proceedings will not render the outcome of the appeal nugatory. The parties will only be reinstated to their respective positions prior to the impugned ruling and any party aggrieved by the trial court’s judgment will have the right to appeal. 31.The threshold for obtaining a stay of proceedings is high because it can significantly impact on the progress and outcome of a case. A stay of proceedings halts a continuing legal action before a court. Unlike a stay of execution (which stops the enforcement of an existing judgment), courts are highly reluctant to pause an active trial or hearing. As authorities suggest, stay of proceedings is only granted in exceptional cases. (See Meta Platforms, Inc & Ano. vs. Samasource Kenya EPZ Limited t/a Sama & Ano. (supra)); Kenya National Humans Rights Equality Commission & 9 Others (Interested Parties) (supra). The standard for establishing "exceptional circumstances" is a highly stringent, fact-specific threshold that requires proving something markedly unusual, rare or out of the ordinary. Circumstances become exceptional if proceeding with the case without a stay would completely destroy the subject matter of the appeal, making a victory later on completely useless. Normal litigation hardships (like ordinary legal costs) do not count. The applicant must show irreversible consequences. 32.The applicant must prove that proceeding with the proceedings before the trial court will create an irreversible state of affairs or cause substantial loss that cannot be cured by monetary damages later on. The court must balance the applicant’s right to exercise its right of appeal and the potential for irreparable harm against the respondents’ right to have their case heard, determined and potentially benefit from a favorable judgment. (See Meta Platforms, Inc & Ano. vs. Samasource Kenya EPZ Limited (supra)). 33.Arising from our analysis and conclusions arrived at herein above, we are not persuaded that the applicant has demonstrated that its appeal if successful will be rendered nugatory. Therefore, we find that the applicant has failed to satisfy the twin principles for grant of the orders sought pursuant to Rule 5 (2) (b). Accordingly, the notice of motion dated 26th May 2026 fails and is hereby dismissed with costs to the respondents. 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.