https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4753

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC APPEAL NO. E047 OF 2025** **LIYAVO FARMERS CO-OPERATIVE** **SOCIETY-----------------------------------------------APPLICANT/APPELLANT** **VERSUS** **JOSEPH H. MAERO, OYULA &** **DOMITILA AWOUR OYULA** **T/A ST. JOSEPH THE WORKER** **HEMA SCHOOLS--------------------------------------------------RESPONDENT** **RULING** 1. The applicant, through an application dated **6/5/2026**, is asking the court to stay the proceedings in **CMC ELC No. EO65 of 2025** as well as the execution of the ruling delivered by Hon. W.K. Chepseba (C.M) on **11/12/2025;** and all consequential orders in respect of the respondent's application dated **13/3/2025**, pending hearing and determination of this application and the appeal. The applicant also prayed for costs of the application. 2. The application is premised on grounds on its face and further grounds set out in the affidavit sworn on **6/5/2026** by Erastus Omurimi. The applicant states that the respondent, pursuant to injunctive orders issued on **11/12/2025,** attempted to enter into **Parcel No. Trans-Nzoia/Liyavo/212** (the suit parcel), which is disputed public land, and to establish a branch of its schools. 3. The applicant avers that the suit parcel had been subject of previous litigation **in Kitale ELC. Case No.37 of 2018**, where the previous title deed issued to Child Rescue Kenya, which, during the pendency of the said suit, sold the suit parcel to the respondent herein, was revoked by a judgment delivered on **24/3/2024** by Hon. Justice Dr. Nyagaka, and the title was reverted to Settlement Fund Trustees. 4. Further, the applicant avers that the impugned ruling raised various substantive and fundamental legal issues that are an affront to the judicial process. The applicant raises the following issues; 5. *The trial court presided over a matter that had already been determined by the Environment and Land Court, rendering the matter res judicata. This position was clearly brought to the trial court's attention.* 6. *The ruling sets a bad precedent where a lower court sits as an appellate court on a decision made by a higher court, which conduct is irregular and illegal.* 7. *That by issuing orders for injunction on the disputed suit parcel whose title had already been revoked by the High Court in favour of the respondent, the trial court validates the respondent's alleged title deed and faults the judgment delivered in* ***Kitale ELC. Case No.37 of 2018****.* 8. Further, the applicant avers that from the memorandum of appeal, it is evident that the intended appeal herein raises weighty triable legal issues. 9. The applicant avers that unless stay orders are issued, the trial court may proceed with the proceedings before it to the detriment of the applicant. 10. The copies of the impugned ruling; memorandum of appeal; decree; sale agreement dated **2/1/2019** are attached as **E01- E04**, respectively. 11. The respondent opposed the application through a replying affidavit sworn by Domitila Awour Oyula on **8/6/2026.** According to the respondent, the application is misconceived. 12. The respondent avers that the school has been the legal and equitable owner of the suit parcel as seen in the copy of the title deed attached as DAO1 and a sale agreement attached as DAO2. The respondent further deposes that the school purchased the suit land on **2/1/2019** at **Kshs.7,000,000/=** from the then registered owner, Child Rescue Kenya International Childcare Trust, which suit land was subsequently registered in the name of the school. The respondent deposes that the school has since been in use and occupation of the suit land. Copies of the photographs depicting this fact have been annexed as **DAO3(a),(b) and (c).** 13. Further, the respondent denies being privy or party to **Kitale ELC. Case No.37 of 2018**, and the Settlement Trustee, as the declared owner of the suit parcel in the aforementioned case, has not contested the ownership and occupation. 14. The respondent equally deposes that the subsisting injunctive order restrained the applicant from interfering with the school’s quiet possession and peaceful use of the suit land, which order was duly served on the applicant. That despite the order, the applicant has leased out the suit land to Elica Lukorito, who ploughed the same in February and March **2026**. 15. Further, the respondent avers that the applicant has stationed guards who have denied them access and use of the suit parcel, in flagrant disregard of the court order, which amounts to contempt of court. According to the respondent, there is an ongoing application for contempt of the said orders at the trial court. 16. The respondent deposes that the applicant has failed to advance any reasonable grounds to warrant the orders sought, and has also failed to demonstrate any legitimate interest in the suit parcel. 17. In a further affidavit sworn by Erastus Omurimi on **24/6/2026**. It is deposed that a judgment operates in rem, and the judgment in **ELC No. 37 of 2018** is binding on all persons claiming through or under the title. The applicant also avers that the title to the suit parcel is void since it is a subdivision of a title deed that has been revoked. 18. In addition, the applicant avers that at the time of the purchase, the respondent was fully aware of the pending case and that occupation cannot override the revocation of the title deed. 19. The respondent further asserts that he possesses an allotment letter from the Settlement Fund Trustees; hence, he has sufficient proprietary interest in the suit land. 20. The appeal was canvassed by way of written submissions, and parties were accorded adequate time to file and effect service. 21. The applicant relies on written submissions dated **24/6/2026** inwhichhe isolated two issues for the court's determination. The first issue is whether the applicant has demonstrated reasonable grounds to justify the issuance of orders for a stay of execution and a stay of proceedings. 22. The applicant, relying on ***Vishram Ravji Halai -vs- Thornton & Turpin [1990] KLR 365,*** submits that the appeal is *bona fide* and raises arguable points of law and fact, as held in ***Stanley Kang'ethe Kinyaniui -vs- Tony Ketter & 5 Others (2013) eKLR*** as cited in ***Kenafric Matches Ltd -vs- Match Masters Ltd & Another, Civil Application No. E092 of 2021.*** 23. The applicant further submits that the case at the trial court is *res judicata,* **ELC Case No. 37 of 2018**, contrary to **Section 7** of the Civil Procedure Act, and the judgment therein operates *in* *rem*. For this proposition, the applicant relies on ***Paul Juve Ngei -vs- KCB Kenya Limited, ELC No. E019 of 2025.*** 24. Further, the applicant submits that the lower court lacks jurisdiction to sit as an appellate court over the decisions made by a higher court under the principle of judicial hierarchy. It is the applicant's submission that **Article 162(2)** of the Constitution establishes the Environment and Land Court as a superior court with status equivalent to the High Court and confers it with original jurisdiction over land matters. 25. On whether the respondent acquired title to the suit parcel fraudulently, the applicant submits that the same was acquired from Child Rescue Kenya on **2/1/2019** during the pendency of **ELC Case No. 37 of 2018**. That subsequently, the title deed was revoked, and therefore the respondent's title is unknown in law. On this proposition, the applicant relies on ***Munyu Maina -vs-HIram Gathiha Maina, Civil Appeal No.239 of 2009 [2013].*** 26. Regarding the allegations of contempt of court, the applicant submits that the same should not be used as a bar to the orders sought. 27. On the nugatory aspect, the applicant submits that if the orders sought are denied, the appeal shall be rendered academic and he shall suffer irreversible damage. The court is directed to be guided by ***Power & Lighting Co. Ltd -vs- David Obare Omwoyo & Another,*** Justice C. B. Nagillah in his ruling of **11/7/2016**, cited ***Tropical Commodity Suppliers Limited & Others -vs- International Trade Bank Limited (2004) 2 E.A 331 and Bungoma HC Misc. Application No.42 of 2011 James Wangalwa & Another -vs- Agnes Naliaka Cheseto*** and grant the orders sought. 28. The applicant submits that the balance of convenience tilts in favor of granting the orders of stay, since it represents a co-operative society of farmers whose interest in the land is communal and tied to agricultural livelihood; hence denial of stay will allow further encroachment on the suit parcel which the court has already reverted to Settlement Fund Trustee. 29. The applicant also urges the court to exercise its discretion to issue costs of the application. 30. At the time of this ruling, there were no submissions on record for the respondent. 31. I have carefully considered the application, the rival affidavits on record as well as the applicant’s written submissions. The issues for determination are whether the applicant has met the threshold for the grant of the orders sought and who should bear the cost of the application. 32. A party seeking a stay of proceedings must meet the principles set out in ***Kenya Wildlife Service -vs- James Mutembei [2019] eKLR, Re Global Tours & Travel Ltd Nairobi Winding Up Cause No. 43 of 2000, Odhiambo Ramogi & Others -vs- Hon. Attorney General & Others [2019] eKLR and David Morton Silvertein -vs- Atsango Chesoni [2002] eKLR.*** There must be compelling circumstances that warrant the stay of proceedings as opposed to having a case concluded and an appeal preferred to a higher court where all the issues can be canvassed at once if a party is unhappy with the findings of the trial court. 33. An applicant must show that he filed the application expeditiously, timeously and without delay. 34. Turning to the application before me, part of the basis upon which the applicant is seeking a stay of the proceedings is that the title deed to the suit property was revoked in **Kitale ELC No. 37 of 2018** and,therefore, the proceedings in the lower court are *res judicata.* The applicant further contends that the lower court is sitting as an appellate court. Granted, these are grave matters of law as they go to the root of the court’s jurisdiction. They would constitute sufficient grounds for this court to make an order for a stay of proceedings in the lower court without any further inquiry. 35. However, from the record, the applicant did not attach the pleadings in **Kitale ELC No. 37 of 2018** as well as those in the lower court, for the court to determine the all-important question of *res judicata*. 36. Further, the ruling subject of this appeal, as attached, is largely illegible. The same was delivered on **11/12/2025** while this application was filed on **6/5/2026**. This is a delay of almost five months. The applicant has not explained the reasons for the delay. Delay defeats equity and equity does not aid the indolent. The applicant cannot be heard to say that the application was filed without unreasonable delay. 37. In *Halsbury’s Laws of England 4th Edition Vol. 37 page 330*, stay of proceedings is a serious, grave and fundamental interruption to the right that a party has to conduct their litigation towards the trial, based on substantive merits of his case and that, as a general rule, stay of proceedings should not be granted unless there are exceptional circumstances such as where the suit is frivolous, vexatious or harassing; or is manifestly groundless or discloses no cause of action. 38. In ***Kenya Power & Lighting Company Limited -vs- Esther Wanjiru Wokabi [2014] eKLR***, the court observed that an applicant has to demonstrate a *prima* *facie* arguable appeal, that the application was filed expeditiously, and that it is in the interest of justice to stay the proceedings, failing which the appeal will be rendered nugatory. 39. The next issue for this court to consider is on the stay of execution of the impugned ruling, pending the appeal. Stay pending appeal is governed by **Order 42 Rule 6** of the Civil Procedure Rules. It is granted at the discretion of the court where an applicant has established sufficient cause. 40. An applicant must show that he will suffer substantial loss unless the order is made; that the application has been made without unreasonable delay, and such security as the court orders for the due performance of the decree or order, as may ultimately be binding on the applicant, has to be offered. See ***Butt -vs- Rent Restriction Tribunal [1979] KECA 22 (KLR).*** 41. The law has not defined a minimum or maximum delay. It all depends on the circumstances of each case. However, in this application I consider the **5** months' delay to be inordinate. 42. It is instructive to note that imminent execution is not similar to substantial loss. There must be tangible and cogent evidence that the substratum of the appeal shall dissipate in the absence of a stay, as held in ***James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR.*** 43. The applicant has asked the court to stay the implementation of a temporary injunction order issued, pending hearing and determination of the suit at the lower court to prevent his appeal from being rendered nugatory. Looking at the memorandum of appeal and grounds thereof, I do not find anything that would render futile the appeal if stay orders are not granted. 44. In my view, the order issued by the trial court does not confirm ownership of the suit land but rather maintains the *status quo* pending hearing and determination of the suit. The applicant does not stand to lose anything if the injunctive order subsists until the suit is heard and determined. 45. I feel I have said enough to explain why I am not persuaded to disturb the proceedings in the lower court. I make a finding that there are no exceptional circumstances compelling this court to stay the proceedings in the lower court or stay execution of the ruling dated **11/12/2025**. 46. In the circumstances, the application dated **6/5/2026** is dismissed with costs. 47. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Mr. Musungu for the applicant/appellant No appearance for the respondent  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**