https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3999

Kibe v Waitindi & 3 others (Environment and Land Appeal E099 of 2025) [2026] KEELC 3999 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 3999 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Appeal E099 of 2025 MAO Odeny, J June 30, 2026 Between Kenneth Amon Mwangi Kibe Applicant and Harrison Kahiga Waitindi 1st Respondent Hilda Nyaruai Thuku 2nd Respondent Agnes Wanja Maathai 3rd Respondent The Nakuru Land Registrar 4th Respondent Ruling 1.This ruling is in respect of a Notice of Motion application dated 23rd December, 2025 by the Applicant seeking the following orders:a.Spent.b.Spent.c.Spent.d.That pending the hearing and determination of this appeal this Honourable be pleased to grant orders of stay of all proceedings in Nakuru Chief Magistrate's Court ELC NO. 208 OF 2019 formally NakuruELC N0. 65 OF 2016.e.That costs herein be borne by the Respondents. 2.The application is supported by the annexed affidavit of Kenneth Amon Mwangi Kibe the Applicant herein, who deponed that, he had instituted a suit in 2016, being ELC NO. 65 OF 2016, which was later transferred to the lower court and registered as CMC ELC NO. 208 OF 2019. He further deponed that the trial court made a finding on 17th April, 2025, that disallowed and expunged the 2nd Respondent’s additional documents from the court record but the same was later allowed on 3rd December, 2025. It was his further disposition that he had filed an appeal against the ruling. 3.He deponed that he had applied for the typed proceedings but due to the backlog at the typing pool, it was clear that the same would not be ready any time soon unless this court intervenes. He stated that the lower court case was still active and would render this appeal nugatory if the proceedings are not stayed and urged the court to allow the application as prayed. Respondents’case 4.The 2nd Respondent in opposition to the application filed her grounds of opposition dated 16th January, 2016, and submitted that whereas court proceedings should be typed expeditiously and be supplied to a party who has sought them timeously, there is nothing placed on the record by the Applicant to justify an order to fast track typing of proceedings in Nakuru CM ELC No. 208 of 2019 formerly Nakuru ELC No. 65 of 2016. 5.The 2nd Respondent stated that Article 159 (2) (d)of the Constitution frowns upon technical justice as the order issued on the 17th April, 2025, struck out a forensic document examination report of the 2nd Respondent in Nakuru CM ELC No. 208 of 2019, which had been filed before the trial commenced on a technicality as having been filed without leave of the court and subsequently the 2nd Respondent formally moved the court for leave to have the said forensic document examination report included in her list of documents, which was allowed. 6.It was the 2nd Respondent’s case that the Appellant would not be prejudiced in any manner by having the report which had been struck out on a technicality forming part of the documents of the 2nd Respondent for purposes of a trial. 7.According to the Respondent, the Appellant’s assertion the Trial Magistrate sat as an appellate court in her own ruling is untenable as the application giving rise to the ruling of 3rd December, 2025, sought leave of the court to have the said forensic document report earlier filed without leave of the court form part of the documents of the 2nd Respondent. 8.It was the Respondent’s case that if the court grants orders of stay of proceedings, the same will further frustrate the conclusion of a matter that has been in court for several years largely, contributed by the Appellant filing multiplicity of applications instead of prosecuting the main suit. 9.The 3rd Respondent filed her replying affidavit sworn on 26th January, 2026, where she averred that the application was a delaying tactic to have the matter stay in court. She further averred that the Applicant failed to meet the pre-requisites for the grant of the orders especially since one could not predict its determination. 10.The 3rd Respondent stated that the Appellant ought to have filed and ventilated the application before the trial court and the memorandum of appeal raises no arguable grounds to warrant stay of the matter. Further, the Applicant has not demonstrated that admission of the additional documents permitted by the court will lead to any miscarriage of justice especially since the matter has not even taken off for hearing. The Respondent urged the court to dismiss the application with costs for being an abuse of court process. Applicant’s Submissions 11.Counsel for the Applicant filed submissions dated 5th March, 2026, and identified the following issues for determination:a.Whether the Applicant has satisfied the threshold for grant of stay of proceedings pending appeal.b.Whether failure to grant stay will render the appeal nugatoryc.Whether the Honourable Court should order priority typing and certification of proceedingsd.Who should bear the costs of the application 12.On the first issue, as to whether the Applicant has satisfied the threshold for grant of stay of proceedings pending appeal, counsel submitted that the power to grant stay of proceedings pending appeal is discretionary and must be exercised judiciously and in the interest of justice and relied on the case of Global Tours & Travel Limited V Five Continents Travel Limited [2015] KECA 789 (KLR), where the court held that in considering whether to grant stay of proceedings, the court must weigh the pros and cons of granting or refusing to grant the order bearing in mind factors of arguability of the appeal, expeditious disposal of cases scarcity of judicial time, potential prejudice to parties and the overall interest of justice. 13.Counsel submitted that the appeal challenges the propriety of the trial Court’s decision to admit documents it had earlier expunged from the record, and the court having rendered itself on the admissibility of the documents, improperly revisited the issue and reversed its own determination. Counsel therefore submitted that the issue raised a substantial question regarding the proper exercise of judicial discretion and the limits of a trial court’s jurisdiction once it had already pronounced itself on a matter. 14.Mr. Wambeyi submitted that if the lower court proceedings were permitted to continue on the basis of the impugned documents, the evidentiary foundation of the trial would have been altered in a manner that is directly challenged in the present appeal, and would render the Appeal an academic exercise. 15.According to counsel, the Respondents will suffer no prejudice if the proceedings are temporarily stayed pending determination of the appeal, but the Applicant stood to suffer prejudice if compelled to proceed with a trial founded upon documents whose admission is the very subject of the appeal. 16.On the second issue, whether the grant of stay of proceedings will render the Appeal nugatory, counsel relied on the cases of Butt V Rent Restriction Tribunal [1982] KLR 417 and Reliance Bank Ltd V Norlake Investments Ltd [2002] 1EA 227, and submitted that if judgment was delivered before the appeal was heard, the Applicant may be compelled to initiate further appellate or review proceedings to undo the consequences of the trial on contested evidentiary evidence. Counsel stated that unless stay is granted, the appeal will be rendered nugatory. 17.On the third issue, counsel submitted that the delay in supplying of the proceedings is not attributable to inaction by the Applicant but administrative backlog in the court registry, and relied on Section 1A, 1B and 3A of the Civil Procedure Act and submitted that it would be just and equitable for the court to direct priority typing and certification of the lower court proceedings. 1St Respondent’s Submissions 18.Counsel for the 1st Respondent filed submissions dated 2nd April, 2026, and identified one issue for determination, as to whether the application for stay of proceedings has merit. 19.Mr. Karanja submitted that the application does not meet the threshold for issuance of the stay orders as it is meant to delay the conclusion of the lower court matter. Further, the appeal did not raise any reasonable grounds as the same is challenging an order issued to the 2nd Respondent to file documents after the Applicant had filed his late. It was counsel’s submission that the Applicant will not suffer any prejudice upon the introduction of the documents in the matter. Further, the trial court had not made any determination as regards the evidence presented before it for the Applicant to demonstrate that he has suffered loss. 20.It was counsel’s further submission that the appeal was against the rules of natural justice since the Applicant had been allowed to file his documents late but he did not wish to have the other party enjoy the same right, and urged the court to dismiss the application with costs. 2Nd Respondent’s Submissions 21.Counsel for the 2nd Respondent filed submissions dated 19th March, 2026, and identified two issues for determination, as to whether the Appellant is entitled to the orders sought and who should bear the costs of the application. 22.On the first issue, counsel submitted that the Applicant has not demonstrated sufficient cause for grant of stay of the proceedings pending appeal, as the issue of the appeal being rendered nugatory was speculative, as the Applicant will have an opportunity to interrogate the document during trial. 23.Mr. Ndubi submitted that even if the trial court were to make a determination that was adverse to the Applicant, he will still have an opportunity to pursue the issue in the substantive appeal, and cited the cases of Benjamin Kimani Romoka & 2 Others V Eveready Batteries (K) Ltd [2006] KEHC 1525 (KLR) and Ngetich V Goren & Another (Civil Application E021 of 2024) [2025] KECA 565 (KLR), and urged the court to dismiss the application with costs. Analysis And Determination 24.The issue for determination is whether the Applicant has met the threshold for the grant of an order of stay of proceedings. The Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) and David Morton Silverstein v. Atsango Chesoni [2000] KECA 287 (KLR) set out the following principles that should guide Courts in applications seeking to stay proceedings:(1)If there is a pending appeal in the higher court.(2)The Applicant should explain why a stay has not been sought in the higher court since the policy is to move to the said court, which is better placed to calibrate its orders.(3)There must be a demonstration that the appeal raises substantial questions to be determined or is otherwise arguable.(4)There must be a demonstration of the appeal being rendered nugatory.(5)Exceptional circumstances must be demonstrated which make the stay of proceedings warranted as opposed to hearing the case concluded safely and all arising grievances taken up on a single appeal.(6)The Applicant must demonstrate that the application was filed expeditiously and without delay. 25.In the case of Re Global Tours & Travel Ltd HCWC No. 43 of 2000 Ringera, J (as he then was) held that:“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 26.The grant or refusal to stay proceedings is a judicial discretion where the court should consider the expeditious disposal of cases and whether the applicant has an arguable appeal. 27.It is the Applicant’s case that trial court made a finding which expunged the 2nd Respondent’s additional documents from the court record but the same was later allowed forming the basis of his appeal. 28.The 2nd Respondent contends that even if the trial court would render an adverse judgment, the Applicant still had an opportunity to appeal the judgment in the substantive appeal. That staying of the proceedings will delay the hearing and determination of the case which has been in court for many years. 29.In the case of Kenya Power & Lighting Co. Ltd V Esther Wanjiru Wokebii Civil Appeal No. 326 of 2013 (2014) eKLR, the court in establishing the criteria for consideration for an order of stay of proceedings held as follows:“Having made that finding, it is obvious that Order 42 rule 6(2) cannot come to the aid of the Applicant. The Court must be guided by other considerations in making its decision whether or not to grant stay of proceedings as sought herein but then, what are those considerations”.a.Whether the Applicant has established that he/she has a prima facie arguable case.b.Whether the application was filed expeditiously andc.Whether the Applicant has established sufficient cause to the satisfaction of the Court that it is in the interest of justice to grant the orders sought.” 30.Order 42 rule 6(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act provide for the court’s jurisdiction on stay of proceedings pending Appeal. The court has the discretion to either allow or reject an application for stay of proceedings, but the discretion must be used judiciously, cautiously and in the interest of justice given that expeditious disposal of disputes is a right of every party. 31.In the case of Kenya Wildlife Service vs. James Mutembei [2019] eKLR, the court held that an order of stay of proceedings is an exceptional remedy, only to be granted in exceptional circumstances, given its potential to infringe on a litigant’s fundamental right to a fair and prompt hearing. The Court was emphatic that the right of access to justice must be duly regarded and that the bar for issuing stay orders is high and requires a careful balancing of interests. 32.Similarly, in the case of Christopher Ndolo Mutuku & Another V CFC Stanbic Bank Ltd (2015) eKLR, the Court observed that:“…what matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…” 33.The court must be satisfied that the Applicant has an arguable appeal, which is not frivolous but raises substantial legal questions. The Applicant must also demonstrate that he/she will suffer substantial loss if the order is not granted and that the appeal will be rendered nugatory. If the Applicant meets the threshold, then the court will grant the order sought. 34.This matter is still pending hearing and determination in the lower court and the reason why the Applicant wants the proceedings stayed is that the court allowed the 2nd Respondent’s additional documents to be admitted. This matter has not yet been heard and the Applicant has an opportunity to cross-examine the respondent on the documents. The fact that documents have been filed does not mean that they automatically become part of the evidence. A party is under a duty to prove the evidential value of such documents and must be subjected to scrutiny and cross-examination. The rules of evidence on documentary evidence must apply. 35.In the case of Turbo Highway Eldoret Ltd v Muniu (Civil Appeal E040 of 2021) [2022] KEHC 10197 (KLR) (30 June 2022) (Ruling) the court stated as follows:“I am not persuaded, however, that the appeal will be rendered nugatory by the mere fact that the trial may proceed and a judgment on merits given. A judgment given is capable of being stayed. Whether the fact that a party had preferred an interlocutory appeal is entitled to a stay of proceedings cannot, therefore, merely be based on the fact that the Trial Court might consider what the appellant considers to be erroneous conclusions in its judgment. If the rule were otherwise, it would seriously impede proceedings in the trial Courts. This is because a party who is keen on obstructing a case from proceeding would simply prefer multiple appeals against interlocutory rulings by the Trial Court and then seek stay of proceedings in the Trial Court.” 36.In view of the foregoing, I find that the Applicant has not met the threshold for grant of stay of proceedings pending Appeal, therefore the application is dismissed with costs to the Respondents. DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF JUNE 2026.M. A. ODENYJUDGE