https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3990

Kegohi & 2 others v Kegohi (Land Case Appeal E013 of 2026) [2026] KEELC 3990 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 3990 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Land Case Appeal E013 of 2026 GMA Ongondo, J June 29, 2026 Between Levis Anyanda Kegohi 1st Appellant Sarafina Kadali Kegohi 2nd Appellant Linda Nelima Kasavuli 3rd Appellant and Jackton Mark Kegohi Respondent Ruling 1.This ruling is in respect of an application by way of a Notice of Motion dated 29th May 2026 by the applicants/appellants through Bryan Khaemba, Kamau Kamau and Company Advocates for the principal orders thus;a.That upon the hearing and determination of this application, this Honourable Court be pleased to grant an order to stay of any further proceedings in Kapsabet MCELC/E003/2026 Jackton Mark Kegohi versus Levis Anyanda Kegohi & 2 Others until the present appeal herein is heard and determined.b.That the costs of this application do abide the outcome of the appeal. 2.The application is premised upon the supporting affidavit of thirteen paragraphs sworn on even date by the 1st applicant/appellant for and on his own behalf and on behalf of the 2nd and 3rd applicants and the accompanying documents including a copy of the ruling delivered on 19th May 2026 in Kapsabet MCELC E003 of 2026 and a copy of the memorandum of appeal dated 29th May 2026 herein. Also, the same is based on the grounds, inter alia;a.From the pleadings on record, the Respondent seeks a permanent injunction restraining the appellants herein from ever laying claim to, trespassing, constructing and in any other manner whatsoever interfering with the appellant's peaceful use and occupation of land parcels known as Nandi/Kapsengere/1541 and Nandi/Kapsengere/1542 (The suit land herein).b.​However, the said issue was conclusively considered and determined by the High Court in Bungoma HCFP&A No. 27 of 2001 In the Estate of Jonathan Kegohi (Deceased) making the lower court suit res judicata.c.​Consequently, the Appellants filed an application dated 16th March 2026 seeking to strike out the suit for being res judicata. However, vide a ruling delivered on the 19th May 2026, the trial court dismissed the said application terming it a preliminary objection and that the suit raised viable and triable issues.d.​The appellants are aggrieved by the said decision and have already filed a Memorandum of Appeal on grounds inter alia; that the court did not determine whether the application met the necessary conditions to strike out the lower court suit for being res judicata.e.​However, and in the meantime, the appellants are apprehensive that pending the determination of the appeal herein, the continued prosecution of the lower court against the them will subject them to unnecessary litigation, expense, and prejudice, yet the dispute herein has already been determined by a court of competent jurisdiction, which suit has been slated for Mention on the 28th July 2026. 3.The respondent was duly served with the application as disclosed in the affidavit of service sworn on 24th June 2026 and a further affidavit of service sworn on 29th June 2026 by Bilha Machi, a process server of this Honourable Court. So, Mr. Bryan Khaemba learned counsel for the applicants implored the court to grant order number 3 sought in the application in the circumstances. 4.In the case of Shadrack Arap Baiywo vs Bodi Bach (1987) eKLR, the Court of Appeal noted;‘There is a presumption of service as stated in the process server’s report, and the burden lies on the party questioning it…..’ 5.In the foregone, the respondent was granted the opportunity to respond to the application but opted otherwise; see Festus Ogada vs Hans Mollin (2009) eKLR. 6.It is noteworthy that the applicants filed the instant appeal by way of the memorandum of appeal of even date. In the case of Butt vs Rent Restriction Tribunal (1979) eKLR, the Court of Appeal held;‘……and the appellant has an undoubted right of appeal…….’ 7.In the premises, I find the application firm and merited. The same is hereby allowed in the terms infra;a.an order to stay of any further proceedings in Kapsabet MCELC/E003/2026 Jackton Mark Kegohi versus Levis Anyanda Kegohi & 2 others until the present appeal herein is heard and determined.b.That the costs of this application do abide the outcome of the instant appeal. 8.Additionally, the applicants’ counsel to file and serve record of appeal within the next forty five (45) days from this date. The appeal is fixed for directions on 30th September 2026. 9.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 29TH DAY OF JUNE 2026.HON. G M A ONGONDOJUDGEIn the presence of;Mr. Bryan Khaemba learned counsel for the applicants/appellants.Walter, Court Assistant.