https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1547

Mogwanja & 7 others (Being trustees of Kenya Railways Staff Retirement Benefits Schee) v Washika & 9 others (Civil Appeal (Application) E025 of 2026) [2026] KECA 1547 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1547 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E025 of 2026 L Ndolo, WK Korir & AI Hassan, JJA July 31, 2026 Between Martin Mogwanja 1st Appellant Philip Jamhuri Mainga 2nd Appellant James Kariuki Kanyeki 3rd Appellant Jacqueline M'Mboga 4th Appellant Wilberforce Asava 5th Appellant Kadima Elijah Ogoti 6th Appellant Mokaya Nancy Chemutai 7th Appellant Sang Maurice Ombogo Awuor 8th Appellant Being trustees of Kenya Railways Staff Retirement Benefits Schee and Rodgers W Washika 1st Respondent Kenneth Boinett 2nd Respondent Gordon Ochieng Ochar 3rd Respondent John O Jakaiti 4th Respondent Aggrey Simiyu 5th Respondent Ronald Luka 6th Respondent Muriithi Maina 7th Respondent Kenya Railways Corporation 8th Respondent The Attorney General 9th Respondent the Retirement Benefits Authority 10th Respondent (An application for stay of proceedings pending appeal arising from the ruling of the Environment and Land Court at Nairobi (Murigi, J.) dated 3rd October 2025 in ELC Petition No. E014 of Page 2 of 6 2025) Ruling 1.What is before us is the notice of motion dated 15th January 2026, brought under rule 5(2)(b) of the Court of Appeal Rules, by which the applicants seek an order staying further proceedings in Nairobi ELC Constitutional Petition No E014 of 2025. 2.The motion is supported by an affidavit sworn by one of the applicants, James Kariuki Kanyeki, and is premised on the following grounds:“a)That the applicants have filed an appeal against the ruling delivered by T. Murigi, J. on 3rd October 2025, in Nairobi ELC Constitutional Petition No E014 of 2025;b)That the applicants are trustees of the Kenya Railways Staff Retirement Benefits Scheme;c)That the applicants are mandated with the sole task of taking care of the pension and/or pension needs of the retired staff of Kenya Railways Corporation;d)That the 1st-7th respondents filed Nairobi ELC Constitutional Petition No E014 of 2025, seeking primarily to have the applicants’ trust deed invalidated and substituted with a new one;e)That the applicants filed a preliminary objection contesting the jurisdiction of the Environment and Land Court (ELC) in adjudicating the case filed by the 1st-7th respondents, culminating in the decision delivered on 3rd October 2025;f)That it is trite that matters involving retirement benefits schemes and/or pension schemes and pensioners is not a preserve of the ELC;g)That the applicants’ appeal is one which is arguable and one which will be rendered nugatory unless the orders sought herein are granted; andh)That it is in the interest of justice that the orders be granted.” 3.The 10th respondent supports the application by a replying affidavit sworn by its Deputy Director, Legal Services, Anthony Kiarahu on 22nd January 2026. He takes the view that the appeal raises substantial questions regarding the jurisdiction of the ELC to wade into matters on pension schemes, which are governed within a specialised statutory framework. 4.Kiarahu urges that the proceedings pending before the ELC be stayed so as to avoid conflicting decisions. He claims that no prejudice will be occasioned by the stay of proceedings. 5.The 1st to 7th respondents oppose the motion by a replying affidavit sworn by the 1st respondent, Rodgers W. Washika, on 26th January 2026. Washika, who states that he has authority to swear the affidavit on his own behalf and on behalf of the 2nd-7th respondents, depones that the applicants were sued before the ELC, jointly and collectively as trustees of the Kenya Railways Staff Retirement Benefits Scheme. 6.According to Washika, the deponent to the affidavit in support of the motion failed to demonstrate that he had the capacity to swear the affidavit on behalf of the other trustees or the retirement scheme. He points out that save for the 7th applicant, Nancy Chemutai Sang, and the 8th applicant, Maurice Ombogo Awuor, the term of office of the trustees had lapsed. He therefore avers that the applicants have no locus standi to commence or participate in court proceedings on behalf of the retirement scheme. 7.Washika accuses the applicants of passing a resolution to dispose of one of the properties forming the subject matter of the dispute, in violation of a status quo order issued by the ELC. He expresses the fear that if stay of proceedings before the ELC is sanctioned by this Court, the rest of the properties will be wasted through the actions of the applicants. 8.In response to the replying affidavit sworn by Washika, James Kariuki Kanyeki swore a further affidavit on 3rd February 2026, stating that Washika had not demonstrated any authority to depone on behalf of the 2nd-7th respondents. Kanyeki adds that there was no evidence that the wider membership of the retirement scheme had been consulted. 9.Rule 5(2)(b) of the Court of Appeal Rules, under which the applicants have come before us, requires that we examine whether the applicants have an arguable appeal, which would be rendered nugatory if the orders sought are not granted. In Republic vs. Kenya Anti-Corruption Commission & 2 Others [2009] KLR 31, this Court stated the following:“The law as regards the principles that guide the Court in such an application brought pursuant to rule 5(2)(b) of the rules is now well settled. The Court exercises unfettered discretion which must be exercised judicially. The applicant needs to satisfy the Court, first, that the appeal or intended appeal is not frivolous, that is to say that it is an arguable appeal. Second, the Court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds, the results or success could be rendered nugatory. In order that the applicant may succeed, he must demonstrate both limbs and demonstrating only one limb would not avail him the order sought if he fails to demonstrate the other limb.” 10.We have considered the ruling by the learned Judge of the ELC, which triggered the present application. The ruling was borne out of two preliminary objections dated 11th April 2025 and 30th April 2025, respectively. In both objections, the jurisdiction of the ELC was challenged first, on account of the subject matter, and second, on non-exhaustion of alternative remedies. A reading of the ruling reveals that the learned Judge overruled the twin objections on the basis of her finding that the subject matter of the dispute was land said to have been transferred from the Kenya Railways Corporation to the Kenya Railways Staff Retirement Benefits Scheme, in a bid to fund the Scheme. Without going into the merits of the finding by the trial court at this stage, we are satisfied that this forms an arguable point in the appeal, which merits consideration by this Court on appeal. 11.Regarding the question whether the appeal would be rendered nugatory if the application is disallowed, we are guided by the holding of this Court in Stanley Kang’ethe Kinyanjui vs. Tonny Ketter & 5 Others [2013] eKLR where it was affirmed that whether or not an appeal would be rendered nugatory is informed by the question whether what is sought to be stayed would be either irreversible or incapable of being recompensed by an award of damages. 12.We note that the prayer sought by the applicants, being stay of proceedings, occupies the stern end of rule 5(2)(b) as it portends halting of court proceedings. In M/S Karsan Ramji & Sons Limited vs. Athumani & Another (Suing for and on behalf of the Wambwanyundo Clan) & Others [2024] KECA 563 (KLR), it was affirmed that the power to stay proceedings must be exercised with extreme caution. And this is how we will proceed in this case. 13.The appeal from which the applicants’ application proceeds is interlocutory in nature, meaning that the main dispute is yet to be determined. Moreover, a question on jurisdiction remains live up to the end of proceedings when final judgment is rendered. 14.It seems to us, therefore, that whichever way one looks at it, the applicants’ grievance regarding jurisdiction of the ELC will be determinable even after that court has fully rendered itself. That said, we have reached the conclusion that the applicants have failed to satisfy the nugatory limb of rule 5(2)(b) of the Court of Appeal Rules. 15.As a result, the applicants’ application fails and is dismissed. The costs of the application will abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.W. KORIR…………………………JUDGE OF APPEALL. M. NDOLO…………………………JUDGE OF APPEALA. I. HASSAN………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR