https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4736

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KABARNET** **ELC PET. NO. EOO4 OF 2025** **(Formerly Iten ELC Pet. No. E001 of 2025)** **JACKSON CHERUTICH KIPTALA ..……………..….…..… PETITIONER** **VERSUS** **CABINET SECRETARY FOR LANDS & HOUSING… 1ST RESPONDENT** **DEPUTY COUNTY COMMISSIONER** **BARINGO NORTH …………………….………….……… 2ND RESPONDENT** **THE HON. ATTORNEY GENERAL ……………….…… 3RD RESPONDENT** **AND** **SAMSON KIPKULEI AYABEI …………………. 1ST INTERESTED PARTY** **WILLY AENGWO CHERONO ………………..… 2ND INTERESTED PARTY** **LAND ADJUDICATION OFFICER** **BARINGO ……………………...…………………. 3RD INTERESTED PARTY** **RULING** 1. **JACKSON CHERUTICH KIPTALA,** (the Petitioner herein), filed this petition on 30th March 2025. He sought various declarations against the **CABINET SECRETARY FOR LANDS & HOUSING**, the **DEPUTY COUNTY COMMISSIONER BARINGO NORTH** and **THE ATTORNEY GENERAL** (the 1st to 3rd Respondents respectively) with regard to the decision of the Minister in appeal case **No. 73 of 2010** which he claimed violated his rights to the land parcel No. **BARINGO/KAPKOIWO/3912.** He also enjoined **SAMSON KIPKULEI AYABEI, WILLY AENGWO CHERONO** and **THE LAND ADJUDICATION OFFICER BARINGO** as the 1st to 3rd Interested parties. The Petitioner’s claim was opposed. 2. After hearing the Petition, **WAITHAKA J** dismissed it vide a Judgment delivered on 26th March 2026. Costs were awarded to the 1st Interested party. 3. Prior to the delivery of that Judgment, **MR. CHEBII** Counsel for the Interested Party had drawn to the Court’s attention that other than this petition, there were two other cases filed in the subordinate court being **KABARNET ELC CASE Nos E007 of 2021** and **E012 of 2024** touching on the same subject matter. On 19th May 2025**, WAITHAKA J** stayed the proceedings in **KABARNET ELC CASE NO. E007 of 2021** and **E012 of 2024** pending the issuance of directions as to how this petition would be determined. Those directions were subsequently issued on 23rd October 2025 that the petition be canvassed by way of written submissions. Those stay orders were only extended once on 16th October 2025 and have therefore since lapsed. 4. Following the delivery of Judgment by **WAITHAKA J** on 26th March 2026, the Petitioner promptly filed a Notice of Appeal on 30th March 2026. 5. The Petitioner has now approached this court vide his Notice of Motion dated 22nd April 2026 and grounded under the provisions of **Sections 1A, 1B, 3, 3A** and **63(e)** of the Civil Procedure Act, **Section 13** of the Environment and Land Court Act and **Order 51** of the Civil Procedure Rules. He seeks the following orders; 6. **That this Honourable court be pleased to stay further proceedings in KABARNET ELC CASE NO. E007 of 2021 and ELC CASE NO. 012 of 2024 pending the hearing and determination of the appeal arising from ELC PETITION NO. 004 of 2025.** 7. **That this Honourable Court be pleased to grant any further orders it may deem fit in the circumstances.** 8. **That costs of this application be in the cause.** 9. The motion is premised on the grounds set out therein and supported by the Petitioner’s affidavit of even date. 10. The gist of the motion is that the Petitioner filed this Petition challenging the Minister’s Judgment in case No. 73 of 2010. The Petition was heard and dismissed but he has filed an appeal against that Judgment which goes to the foundation of the suits pending in **KABARNET ELC CASE NO. E007 of 2021** and **ELC CASE NO. 012 of 2024** and he therefore seeks to stay those proceedings pending the hearing and determination of the appeal. It is his case that the proceedings in the subordinate court are likely to result in conflicting decisions from courts of competent jurisdiction. It is therefore in the interest of Justice that the orders sought herein be granted as the Respondents will not suffer any prejudice. 11. Annexed to the motion is the Notice of Appeal dated 30th March 2026 expressing his intention to appeal the Judgment delivered herein on 26th March 2026. 12. Only the 1st Interested Party filed a response to the Motion. 13. In his replying affidavit dated 13th May 2026, the 1st Interested Party has averred, inter alia that the Petitioner had filed **KABARNET ELC CASE NO. E012 of 2024** against him seeking to obstruct the implementation of the Minister’s decision in case **No. 73 of 2010**. The 1st Interested Party filed a defence and the case was heard and both parties filed their submissions. However, when the matter came up for mention to take a date for the Judgment, the Petitioner filed an application dated 29th May 2025 to stay the proceedings in **KABARNET ELC CASE NO. E007 OF 2021** and **E012 of 2024**. Those proceedings were stayed on the basis that the outcome of this Petition would conclusively determine the fate of the Petitioner’s suit which is pending in **KABARNET ELC CASE NO. E012 of 2024.** Meanwhile, the 1st Interested Party’s application dated 29th May 2025 has never been prosecuted or withdrawn. 14. Judgment in this Petition was subsequently delivered on 26th March 2026 and the court ordered that Petitioner ought to have filed a Judicial Review Application and not a Petition. 15. With regard to **KABARNET ELC CASE NO. E007 of 2021**, the 1st Interested Party’s father one **CHERONO KIMOSOP** had sued the 2nd Interested Party seeking his eviction from a portion of land. The 2nd Interested Party filed a defence seeking injunctive orders and a counter claim seeking ownership of the suit land claimed by the Petitioner in **KABARNET ELC CASE NO. E012 of 2024**. That following the delivery of Judgment in this Petition, the Petitioner filed a Notice of Appeal and an application to stay proceedings in **KABARNET ELC CASE NO. E012 of 2024** to which the 1st Interested Party filed a Preliminary Objection that the subordinate court had no jurisdiction to stay its proceedings in view of the provisions of Section 30 of the Land Adjudication Act. The Preliminary Objection is coming up on 4th June 2026. 16. The Petitioner is not a party in **KABARNET ELC CASE NO. E007 of 2021** and therefore there will be no reason to stay those proceedings. The Petitioner is simply playing a game of chance and/or gambling and there will be no conflicting decisions. The issues raised in the subordinate court are capable of independent determination and do not depend on the outcome of the intended appeal against the Judgment in this Petition. It has also not been demonstrated that the Intended appeal is arguable and the Petitioner simply wants to delay the suits pending in the subordinate courts. The Interested Party on the other hand stands to suffer great prejudice by the continued delay in the prosecution and determination of the proceedings in the subordinate court. The orders sought herein should be declined. 17. The 1st Interested Party has annexed the following documents to his replying affidavit; 18. **Copy of plaint filed in KABARNET ELC CASE NO. E012 of 2024 – JACKSON CHERUTICH KIPTALA V. SAMSON KIPKULEI AYABEI.** 19. **Copy of amended plaint in KABARNET ELC CASE NO. E007 of 2021 CHERONO KIMOSOP V. WILLY AENGWO CHERONO.** 20. **Copy of amended defence in KABARNET ELC CASE NO. 007 of 2021** 21. **Copy of Notice of Preliminary Objection filed in KABARNET ELC CASE NO. E012 of 2024 by the 1st Interested Party.** 22. **Copy of the Decree issued in this Petition.** 23. The court directed that the Motion be canvassed by way of written submissions. The same have been filed both by **MS. BOR** instructed by the firm of **RAYDON MWANGI & ASSOCIATES** for the Petitioner and by **MR. CHEBII** instructed by the firm of **M. K. CHEBII & COMPANY ADVOCATES** for the 1st Interested party. 24. I have considered the Motion, the rival affidavits and annextures and the submissions by Counsel. 25. I must start by observing that whereas this Motion seeks the substantive orders of stay of proceedings in both **KABARNET ELC CASE NO. E007 of 2021** and **KABARNET ELC CASE NO. E012** **of 2024** both of which are pending in the subordinate court, he is not a party in **KABARNET ELC CASE NO. E007 of 2021**. It is therefore not clear why he seeks an order of stay of proceedings in **KABARNET ELC CASE NO. E007 of 2021** and how he will be prejudiced if the proceedings therein are not stayed. In his submission, counsel for the Petitioner states thus; “ **It is the Applicant’s submission that this Honourable Court has inherent jurisdiction to stay proceedings where the interest of justice so demand. The Applicant submits that the dispute arising from Kabarnet ELC No. E012 of 2024 and Kabarnet ELC No. E007 of 2021 herein is substantially intertwined with the issues raised in subsequent appeal arising from the Judgment. The Applicant had challenged the legality and constitutionality of the proceedings and decision in Appeal to the Minister Case No. 73 of 2010. The Petition was heard and determined, and being dissatisfied with the Judgment herein, the Applicant lodged an appeal rising serious and arguable issues of law and Constitutional Petition (sic). Your Lordship, this Applicant submits that the outcome of the said appeal shall directly affect and substantially determine the issues in the present suits.** **It is therefore our humble submissions that the interest of Justice militate in favour of staying further proceedings in the two matters pending the hearing and determination of the appeal”.** 1. On his part, counsel for the 1st Interested Party has submitted in paragraphs 29, 30, 31 and 32 of his submissions that; 29: “**It is manifestly clear that the applicant’s application is intended to frustrate, obstruct and/or delay the hearing and determination of the lower courts suits”.** **30: “Further, granting the order sought by the applicant will occasion unnecessary delay and greatly prejudice the 1st Interested party who is entitled to have the dispute heard and determined expeditiously”.** **31: “Furthermore, the applicant has not demonstrated that he has an arguable appeal to warrant grant of the orders sought”.** **32: “It is our submission that the applicant has failed to meet the threshold of granting stay of proceedings and urge the court to dismiss the application with costs”.** 1. In paragraph (c) and (d) of his submissions, counsel for the Petitioner has made reference to the appeal arising from this Petition as raising “**substantial issues that can only be determined upon hearing of this appeal**” and also that the “**appeal raises serious and arguable issues touching the legality and constitutionality of the proceedings and decision in Appeal to the Minister Case No. 73 of 2010”.** 2. I must remind counsel that the arguability or otherwise of the appeal filed by the Petitioner cannot be an issue for my consideration in this matter. The impugned Judgment was delivered by this court though presided over by another Judge of equal jurisdiction. I am not in a position to gauge the arguability or otherwise of the intended appeal. That can only be a matter for the court of Appeal. It would have been different if I had been considering such an application pending an appeal to this court from the decision of a subordinate court. 3. Having said so, it is well settled that the threshold for granting an order of stay of proceedings has been discussed in **HALSBURY’S LAW OF ENGLAND 4TH EDITION VOL 37** pages 330 and 332 thus: “**The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practise is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue”.** **“This is a power which, it has been emphasized, ought to be exercised sparingly and only in exceptional cases”.** “**It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for stay on this ground must show not merely that the Plaintiff might not or probably would not succeed but that he could not possibly succeed on the basis of the pleading and the fact of the case”.** 1. The remedy of stay of proceedings pending appeal is to be granted judicially on sound reasons. This court has the discretion on whether or not to grant such a remedy. There is no appeal filed or pending before me arising out of any order or Judgment delivered in **KABARNET ELC CASE NO. E007 of 2021** or **KABARNET ELC CASE NO. E012 of 2024**. Indeed, what the Petitioner seeks to stay is the determination by the subordinate court of a Preliminary Objection challenging its Jurisdiction to stay the proceedings before it or even entertain the suit in **KABARNET ELC CASE NO. E012 of 2024**. The remedy of stay of proceedings is an equitable one. The party seeking it must approach the court with clean hands. This is because, such an order impedes on a party’s right to justice which is not delayed as provided under **Article 159 (2) (b)** of the constitution as well as the right to a fair hearing under **Article 50 (1)** of the Constitution. It is on record as averred in paragraph 5 and 6 of the 1st Interested Party’s replying affidavit that the Petitioner filed an application for stay of proceedings in the subordinate court on 29th May 2025 and which remains un-prosecuted. It is not clear why a Motion filed over one year ago has not been prosecuted. There is merit therefore in the 1st Interested Party’s response that the Petitioner “**is playing a game of chance and/or gambling**” as averred in paragraph 18 of the replying affidavit. Equity will not treat such a party kindly. 2. Having considered the Motion by the Petitioner and guided by all the above, I find no merit in the same. It is accordingly dismissed with costs to the 1st Interested Party. **BOAZ N. OLAO** **JUDGE** **24TH JULY 2026** **Ruling dated, signed and delivered by way of electronic mail on this 24th day of July, 2026.** **BOAZ N. OLAO** **JUDGE** **24TH JULY 2026**