https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2943

Lunani v Njenga (Environment and Land Appeal E008 of 2026) [2026] KEELC 2943 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 2943 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Appeal E008 of 2026 CK Nzili, J May 13, 2026 Between Moses Walela Lunani Appellant and Joseph Njenga Respondent Ruling 1.The court, by an application dated 13/4/2026, is asked to:(a)Stay the proceedings in Kitale CMC Land Case No. E044 of 2026, pending hearing and determination of his appeal.(b)Stay of implementation of the injunction order issued on 31/3/2026, over land Title No. 3803/3 Kinyoro, Trans Nzoia, in respect of 40 acres which are in dispute. 2.The reasons are contained on the face of the application and in a supporting affidavit of Moses Walela Lunani, sworn on 13/4/2026. It is deposed that the effect of the ruling dated 31/3/2026, the subject matter of this appeal is to restrain the appellant from entering, tilling, leasing, or in any way using the 40 acres of land he had leased to the respondent, by a lease agreement dated 7/11/2023, for 5 years, which he has run for 2 years now, breached by the respondent leading to a rescission notice dated 6/1/2026, as per annexures marked MWL-(1) and (2). 3.The applicant deposes that he has already refunded the remainder of the lease consideration by way of bankers cheque through a forwarding letter dated 20/1/2026, as per annexure marked MWL-(3), which the respondent has accepted only to turn around and file a suit seeking for injunction against him, to continue using the land to his detriment, and for free for he has not paid anything else. The ruling is attached as annexure marked MWL-(4). 4.The applicant deposes that the decision to rescind the lease agreement was due to breach; the trial court overlooked his reasons, the respondent did not seek for any injunction, but special and general damages, for breach of contract as per the plaint attached as annexure MWL-(5); the court lacks monetary jurisdiction to hear and determine the suit as raised in the defence and valuation report marked as MWL-(6) and (7), but unfortunately, the court rejected such preliminary objection as per ruling attached as MWL-(8), hence the reliefs sought in this application. 5.The application is unopposed. 6.Stay of execution and stay of proceedings are governed by Order 42 of the Civil Procedure Rules. The principles to apply the stay of proceedings were considered in Kenya Wildlife Service -vs- James Mutembei [2019] eKLR. The court said that a stay of proceedings should be granted sparingly and only in exceptional circumstances. 7.The threshold was also set in Christopher Ndolo Mutuku & Another -vs- Stanbic Bank Ltd [2015] eKLR, where the court held that parties to a suit have a right to expeditious disposal of the same, stay of proceedings impedes such right, and prejudices the respondent who is entitled to substantive justice through an expeditious disposal of a matter. The act impedes the court's role to attain its overall objective of expeditious disposal of suits. 8.An applicant for stay of proceedings must therefore demonstrate sufficient cause to warrant interference with an expedited disposal of suits, which is against Articles 50 and 159 of the Constitution. 9.The key consideration, as held in Kenya Power & Lighting Company Limited -vs- Esther Wanjiru Wokabi [2014] eKLR, is 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; otherwise, the appeal will be rendered nugatory. 10.In Re Global Tours & Travel Winding Up Case No. 43 of 2000 Ringera J, held that the sole question on whether to grant stay of proceedings is if it is in the interest of justice to do so, and if so under what terms, while weighing the pros and cons of granting or not granting the orders, bearing in mind the overall objective of the court to dispose of suits expeditious, prima facie merits of the intended appeal, the scarcity and option utilization of judicial resources. 11.In William Odhiambo Ramogi & Others -vs- Attorney General & Others [2019] eKLR, the court held that an applicant has to demonstrate that the appeal raises substantial questions or is arguable, that in the absence of a stay, it will be rendered nugatory, and that there are exceptional circumstances to warrant a stay. 12.The appeal filed by the appellant raises two fundamental questions. One is on the jurisdiction of the lower court, and the second is whether, after a termination of the lease and the refund of the consideration, the applicant could go to the lower court for special and general damages or to a Tribunal. See Wildlife Lodges Ltd -vs- Narok County Council & Others [2011] KECA 280 [KLR]. 13.I find the appeal will be rendered useless if the suit proceeds to a hearing before the issue of jurisdiction is determined through this appeal. 14.On a stay of execution, the factors to consider include filing the appeal and application, showing there will be substantial loss, and the question of security for the due realization of the decree, should the appeal not succeed. 15.The law has not defined a minimum or maximum delay. It all depends on the circumstances of each case. The appeal and the application were filed on 14/4/2026. This was 14 days after the ruling. I find the delay not inordinate. 16.Substantial loss is the cornerstone of a stay. It is what has to be prevented from happening to the substratum of the appeal. 17.Substantial loss is not the same as imminent execution. There must be tangible and cogent evidence that the substratum of the appeal shall dissipate in the absence of a stay. See James Wangalwa & Another -vs- Agnes Naliaka Cheseto [2012] eKLR. 18.By granting a stay, it means the successful party is denied the enjoyment of the fruits of his judgment. See Kenya Shell Ltd -vs- Karanja [1986] KECA 94 [KLR]. 19.The court is asked to stay the implementation of a temporary injunction order issued pending hearing and determination of a suit at the lower court to prevent his appeal from being rendered nugatory. Nugatory means futile, invalid, or worthless, as held in Stanley Kang'ethe Kinyanjui -vs- Tony Ketter & 5 Others [2013] eKLR. 20.In the plaint dated 26/1/2026, the respondent had not prepared for any permanent injunction. At paragraph 9 thereof, the respondent admits a refund of Kshs.2,350,000/=, being the balance of 3 years of the remainder of the lease. At paragraphs 12 and 13, he pleads loss of expected earnings of Kshs. 2,400,000/=, for the remainder of 3 years. 21.In paragraph 15, the respondent prays for liquidated damages of Kshs. 104,000.= p.a. and Kshs. 1,650,000/=. The reliefs are for the declaration that the lease was prematurely and illegally terminated, special and general damages. 22.One of the considerations in an application for an injunction is whether there will be irreparable damage or not. The claim by the respondent shows that he had quantified his damages. 23.The law is that breach of contract does not attract general damages. In Githiomi -vs- Maina Civil Appeal No. 111 of 2019 [2025] KECA 175 [KLR] (6th February 2025) (Judgment), there was a lease agreement of a term of 5 years and 6 months, where the issue of the legal termination notice had been raised. 24.The question on appeal was whether, in view of The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, the suit was properly before the Chief Magistrates’ Court, in view of the tenancy being controlled. 25.I think I have said enough to demonstrate that the applicant has an arguable appeal, substantial loss is disclosed, and that it is in the interest of justice to grant a stay of both proceedings and the implementation of the ruling delivered on 31/3/2026. 26.Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 13TH DAY OF MAY 2026.In the presence of:Court Assistant – DennisMiss Munialo for the applicant – presentMr. Mafumbo for the respondent- presentHON. C.K. NZILIJUDGE, ELC KITALE.