https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4895

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC CASE NO. E029 OF 2025** **CHARLES OWIYO CHUANYA *(Suing as the Legal Representative and Administrator Ad Litem of the Estate of Petro Chuanya Owiyo alias Chuanya Owiyo)*1ST PLAINTIFF** **STEVEN ODHIAMBO NGODIA *(Suing as the Legal Representative and Administrator Ad Litem of the Estates of Adenga Owiyo and Othuon Owiyo)*2ND PLAINTIFF** **=VERSUS=** **JOSEPH NGODIA GONDI alias NGODIA OWIYO1ST DEFENDANT** **IBRAHIM OWIYO OGOLLA2ND DEFENDANT** **CHARLES GILO OGOLLA3RD DEFENDANT** **KAJINA HOLDINGS LIMITED4TH DEFENDANT** **JOSEPH ODHIAMBO OKELLO5TH DEFENDANT** **DAMANUS OGADA OPIYO6TH DEFENDANT** **THE HON. ATTORNEY GENERAL** **(on behalf of the Land Registrar, Kisumu)7TH DEFENDANT** **RULING** 1. Before me for determination is the Notice of Motion dated 16th June 2026 taken out by the 1st, 2nd and 3rd Defendants, whom I shall in this ruling refer to as "the Applicants". The Motion is expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 rule 1 of the Civil Procedure Rules, Article 159 of the Constitution of Kenya, 2010 and all other enabling provisions of the law. 2. The Motion seeks the following orders: - **1. Spent…** **2. That this Honourable Court be pleased to stay all further proceedings in this suit pending the hearing and determination of Kisumu High Court Civil Appeal Case Numbers E251, E252 and E253 all of 2025 challenging the validity of the Grants of Letters of Administration Ad Litem relied upon by the Plaintiffs herein.** **3. That costs of this application be in the cause.** 1. The application was placed before the Court and directions were issued on 17th June 2026 that it be disposed by way of written submissions, with leave to the Applicants to file a reply to the Plaintiffs’ Grounds of Opposition. **The Applicants’ case** 1. The Motion is premised upon eleven grounds appearing on its face and is supported by the affidavit of **JOSEPH NGODIA GONDI alias NGODIA OWIYO,** the 1st Defendant, sworn on 16th June 2026. He deposes that he swears the affidavit on his own behalf and, by authority annexed and marked "JNG-1 Authority to Act", on behalf of the 2nd and 3rd Defendants. 2. The substance of the Applicants’ case, drawn from both the grounds and the supporting affidavit, is short and may be stated as follows. The Plaintiffs have instituted this suit solely in their capacities as Administrators Ad Litem of the estates pleaded in the Plaint. Their locus standi is founded exclusively upon the Grants of Letters of Administration Ad Litem issued in their favour. The legality, propriety and validity of those Grants are presently the subject of challenge before the High Court at Kisumu in HCCA Nos. E251, E252 and E253 all of 2025, a copy of the Memorandum of Appeal in the lead file being annexed to the supporting affidavit. 3. It is deposed that the said appeals challenge the very foundation upon which the Plaintiffs purport to derive authority to institute this suit; that should the challenge succeed, the Plaintiffs would lack the requisite legal capacity to maintain these proceedings; that unless the proceedings are stayed the parties and the Court risk expending considerable time and resources litigating a suit whose competence depends upon the outcome of the High Court proceedings; that there exists a real likelihood of conflicting findings; that no prejudice will be occasioned to the Plaintiffs if the orders sought are granted; and that it is in the interests of justice that the issue of the Plaintiffs’ legal capacity be conclusively determined before the matter proceeds to hearing. **The Plaintiffs’ response** 1. The Plaintiffs opposed the application by Grounds of Opposition dated 16th June 2026 filed by M/s Ken Omollo & Company Advocates. Three grounds are advanced, the first of which carries several limbs. 2. The principal contention is that this Court, being a court established under Article 162(2)(b) of the Constitution, has no jurisdiction to stay proceedings in a matter pending before the High Court, which is a court established under **Article 165(1).** It is said that this Court’s jurisdiction is confined to disputes falling within **Article 162(2)(b) as read with section 13 of the Environment and Land Court Act, 2011;** that the matters pending before the High Court which the Applicants seek to stay are appeals arising from probate and administration proceedings, commonly referred to as family matters; that Parliament has not yet determined the jurisdiction and functions of this Court as contemplated by **Article 162(3),** such that entertaining the application would amount to interfering with the jurisdiction and operation of other courts; and that the High Court would in any event not comply with the orders sought, its jurisdiction being circumscribed by **Article 165(5).** 3. On that footing the Plaintiffs contend that the application is misconceived, bad in law and an abuse of the process of this Court, and that it falls on its face and ought to be dismissed with costs. **The Applicants’ reply** 1. Pursuant to the leave granted on 17th June 2026, the Applicants filed a Reply being a further affidavit of Joseph Ngodia Gondi sworn on 19th June 2026. 2. The gravamen of the reply is that the Plaintiffs have misconstrued the nature and scope of the Motion. The Applicants emphasise that they do not seek any order staying, restraining, interfering with or otherwise affecting the proceedings pending before the High Court. What they seek is a stay of proceedings before this Court, pending determination of appeals whose outcome bears directly upon the competence of the present suit. They assert that the application does not offend **Articles 162 or 165 of the Constitution** because no order is sought against the High Court and no interference with the exercise of its jurisdiction is contemplated. They add that the Plaintiffs have failed to demonstrate any prejudice they stand to suffer, and pray that the Grounds of Opposition be dismissed with costs. **SUBMISSIONS** 1. The Applicants filed written submissions dated 17th June 2026 together with a bundle of authorities. Counsel framed four issues, namely whether this Court possesses jurisdiction to stay proceedings before itself; whether the pending appeals raise a jurisdictional prerequisite touching on the Plaintiffs’ locus standi; whether sufficient cause has been demonstrated to warrant a stay; and who should bear the costs of the application. 2. On jurisdiction, it was submitted that the Plaintiffs’ objection misconceives the application, since the Applicants seek no order directed at the High Court but merely an order regulating proceedings before this Court, which this Court is competent to make in exercise of its inherent jurisdiction and under sections 1A, 1B and 3A of the Civil Procedure Act. Reliance was placed on **Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 and Kenya Wildlife Service v James Mutembei [2019] eKLR** for the proposition that a stay of proceedings is a discretionary remedy to be exercised where the interests of justice so demand, the Court weighing the pros and cons of granting or withholding the order. 3. On the second and third issues, counsel submitted that the Plaintiffs’ authority to sue is wholly dependent upon the continued validity of the Grants; that the issue before the High Court is therefore not collateral but goes to the very root of the Plaintiffs’ legal capacity; and that, locus standi being a threshold jurisdictional question, it ought to be determined at the earliest opportunity. Reliance was placed on **Julius v Chief Registrar of the Judiciary & 14 others (Application E001 of 2025) [2025] KESC 7 (KLR) and on Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1** for the familiar proposition that jurisdiction is everything and that a court which lacks it must down its tools. 4. It was finally urged that sufficient cause has been established in that the appeals challenge the very foundation of the Plaintiffs’ standing; that their outcome is likely to substantially affect, if not determine, the competence of this suit; that proceeding to hearing risks substantial wastage of judicial time and resources should the Grants subsequently be revoked; and that the Plaintiffs have demonstrated no prejudice. The balance of convenience and the overriding objective, it was said, favour preservation of the status quo. 5. The Plaintiffs did not file written submissions. The 4th, 5th, 6th and 7th Defendants neither filed any response to the application nor filed submissions, notwithstanding service. In the circumstances I proceed to determine the application on the basis of the pleadings, the affidavit material and the submissions on record. **Issues for determination** 1. Having considered the Motion, the supporting affidavit and its annextures, the Grounds of Opposition, the Reply thereto and the Applicants’ submissions and authorities, I am of the view that the following issues arise for determination: - **i) Whether this Court has jurisdiction to entertain the application and to grant the orders sought;** **ii) Whether the Applicants have established sufficient cause to warrant a stay of these proceedings pending determination of Kisumu HCCA Nos. E251, E252 and E253 of 2025;** **iii) Who should bear the costs of the application.** **Analysis and Determination** ***(i) Whether this Court has jurisdiction to grant the orders sought*** 1. It is trite, and I need not belabour the point, that jurisdiction is the first port of call. A court without jurisdiction can take not one more step. That much was settled by the Court of Appeal in the Lillian "S" case, and the principle has been applied without number since. A question of jurisdiction, once raised, must be determined at once and upon the material then before the Court. 2. The Plaintiffs’ objection, however, proceeds upon a misapprehension of what it is that the Applicants ask of this Court. The objection is framed as though the Applicants had invited this Court to stay, restrain or otherwise interfere with proceedings pending before the High Court. That is plainly not the case. On a plain reading of prayer 2 of the Motion, what is sought is an order staying further proceedings in this suit, that is to say, in ELC Case No. E029 of 2025, a matter properly before this Court. The pending appeals are invoked not as the subject of the order sought but merely as the event upon which the duration of the proposed stay is to be measured. 3. An order of that character operates upon this Court’s own docket and upon the parties presently before it. It is directed at no other court and requires nothing of any other court. It could not, therefore, offend Article 162 or Article 165 of the Constitution, and the Plaintiffs’ apprehension that "the High Court would not comply with the orders sought" is beside the point: no compliance is asked of the High Court because no order is sought against it. 4. Every superior court of record possesses the power to regulate and control the proceedings before it. That power is inherent in the very nature of a court of record and is not a creature of statute, although in the case of this Court it finds statutory reinforcement. By section 4(1) of the Environment and Land Court Act, 2011 this Court is a superior court of record with the status of the High Court. Section 3A of the Civil Procedure Act, which applies to proceedings before this Court, expressly preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, and sections 1A and 1B enjoin the Court to give effect to the overriding objective through the just, expeditious, proportionate and affordable resolution of disputes. 5. I would add that the Plaintiffs’ submission that Parliament "has not yet determined the jurisdiction and functions of this Court as contemplated by Article 162(3)" cannot be sustained. Parliament did precisely that when it enacted the Environment and Land Court Act, No. 19 of 2011. Indeed, the Plaintiffs invoke section 13 of that very Act in the immediately preceding limb of the same ground. The two limbs cannot stand together. 6. For those reasons I am satisfied that this Court has jurisdiction to entertain the application and, in an appropriate case, to grant the order sought. The first issue is answered in the affirmative. 7. That, however, is only half the enquiry. Jurisdiction to entertain an application is not the same thing as entitlement to the relief sought in it. Having found that the door is open, I turn to consider whether the Applicants have brought themselves within the principles upon which this Court will arrest its own process. ***(ii) Whether sufficient cause has been established*** 1. The principles governing a stay of proceedings are well settled and, importantly, they are not the principles governing a stay of execution. The two are frequently conflated, and it is worth restating the distinction. A stay of execution suspends the fruits of a decree. A stay of proceedings arrests the litigation itself before it has been determined. The latter is by far the graver order. 2. In **Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, Ringera J. (as he then was)** explained that whether or not to stay proceedings is a matter of judicial discretion to be exercised in the interests of justice, the Court weighing the advantages and disadvantages of granting or withholding the order, and bearing in mind such considerations as the need for expeditious disposal of cases, whether the intended appeal is arguable, the scarcity and optimum utilisation of judicial time, and whether the application has been brought expeditiously. That passage was cited with approval by **Gikonyo J**. in **Kenya Wildlife Service v James Mutembei [2019] eKLR,** an authority the Applicants themselves placed before me. 3. It is instructive that in *Mutembei* the learned Judge, after reproducing that passage, went on to describe a stay of proceedings as a grave judicial action which seriously interferes with a litigant’s right to conduct his litigation, impinging upon the right of access to justice, the right to have a dispute determined without unreasonable delay and, overall, the right to a fair hearing. He held the test for a stay of proceedings to be, in his words, "high and stringent". Drawing on Halsbury’s Laws of England, 4th Edition, Vol. 37, he observed that the general practice is that a stay ought not to be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue, and that the power is one to be exercised sparingly and only in exceptional cases. The application in that case was, on those principles, dismissed. 4. Those, then, are the principles by which I must test the present Motion. Applying them, and with respect to the industry of counsel for the Applicants, I am not persuaded that a case has been made out. My reasons follow. 5. First, and as a matter of evidence, the foundation of the application is thinner than the Motion suggests. The Applicants seek a stay pending the determination of three appeals, being HCCA Nos. E251, E252 and E253 of 2025. Yet the only appellate document placed before me is a single Memorandum of Appeal, described in the supporting affidavit as being that filed in the lead file, HCCA No. E251 of 2025. There is nothing at all before me touching HCCA Nos. E252 and E253 of 2025 no memorandum, no record, no order, not so much as a filing receipt. Nor is there any evidence as to the present status of any of the three appeals: whether they have been admitted, whether they remain pending and undetermined as at the date of this ruling, whether directions have been taken in them, or when they are likely to be heard. A court invited to arrest its own process for an indefinite period is entitled to insist upon a firm evidential footing for doing so. That footing has not been laid. 6. Secondly, and more fundamentally, the Grants subsist. It is elementary that a grant of representation, once issued, remains valid and effectual for all purposes until it is revoked or annulled by a court of competent jurisdiction. The mere filing of an appeal against the ruling by which a grant was made does not, of itself, operate as a stay of that ruling, nor does it suspend the grant. Order 42 rule 6(1) of the Civil Procedure Rules puts the matter beyond argument: no appeal shall operate as a stay of proceedings under a decree or order appealed from except in so far as the court appealed from may order. No order of the High Court staying, suspending or otherwise interfering with the ruling of the Senior Principal Magistrate delivered on 27th October 2025 has been placed before me. It follows that as matters stand today the Plaintiffs hold valid Grants and possess the very capacity in which they sue. 7. Thirdly, and this is where in my respectful view the Applicants’ argument turns upon itself, the authorities relied upon do not carry them where they wish to go. A direction that a question be resolved at the earliest opportunity is the very opposite of a direction that its resolution be deferred to await the outcome of proceedings elsewhere. If locus standi is to be determined at the earliest opportunity, then it must be determined upon the material as it presently stands; the Grants being extant and unrevoked, the Plaintiffs have standing. The same is true of the Lillian "S" principle, which requires a jurisdictional question to be decided forthwith upon the evidence before the court, however scanty that evidence may be. It does not authorise a court to hold the question in suspense. 8. Fourthly, this Court has no jurisdiction to pronounce upon the validity, legality or propriety of the Grants. Those are questions falling squarely within the succession jurisdiction, and they are, on the Applicants’ own case, before the appropriate forum. This Court takes the Grants as it finds them. That being so, the apprehension of "inconsistent and conflicting decisions by Courts of concurrent jurisdiction" is, with respect, overstated. This Court will not decide whether the Grants were properly issued; the High Court will not decide who is entitled to the suit property. The two enquiries do not overlap, and there is no risk of the one contradicting the other. 9. Fifthly, the benefit which the Applicants anticipate from a stay is contingent upon an event which may never occur. Should the appeals fail, the stay will have achieved nothing beyond delay. Should they succeed, the consequences for this suit can be addressed at that time and by the appropriate procedural means. The Applicants are not without remedy. They may, at the appropriate juncture, raise the Plaintiffs’ capacity by way of preliminary objection or an application to strike out; they retain that right throughout, an objection going to jurisdiction being incapable of waiver by delay. If they apprehend that irreversible steps may be taken in the interim, the proper forum in which to seek protective orders is the High Court seized of the appeals, which alone can grant consequential relief in respect of its own proceedings. 10. Sixthly, I am unable to accept the assertion, made in the supporting affidavit and repeated in submissions, that no prejudice will be occasioned to the Plaintiffs. Prejudice does not consist only in the loss of a right. This is a dispute over land, involving the estates of persons long deceased and, on the face of the Plaint, several parties and successive dealings. A suit of that character does not improve with keeping. Memories fade, deponents grow old and pass on, and documents are mislaid. To this must be added that the stay sought is open-ended. It is tied to the determination of three appeals whose progress is unknown to this Court and over which neither this Court nor the parties before it have any control. **Article 48 of the Constitution** guarantees access to justice, and **Article 50(1)** the right to have a dispute resolved in a fair and public hearing. **Article 159(2)(b)** requires that justice be administered without undue delay, and **sections 1A and 1B of the Civil Procedure Act** enjoin this Court to facilitate the just and expeditious resolution of disputes. Those provisions bind this Court quite as much as the discretion the Applicants invite me to exercise. 11. Seventhly, on the question of judicial economy, I observe that the argument cuts both ways. The Applicants say that judicial time may be wasted if the suit proceeds and the Grants are later revoked. That is so. But judicial time is equally squandered when a suit filed in 2025 lies dormant awaiting an event of uncertain occurrence and uncertain date, only for the parties to return to a docket which has in the meantime moved on. The optimum utilisation of judicial time, in the circumstances of this case, favours progressing the suit through its pre-trial stages rather than suspending it. 12. Finally, as to the arguability of the appeals, I say nothing. It would be improper for me to express any view, however tentative, upon the merits of proceedings pending before a court of coordinate status, and I decline the implicit invitation to do so. It suffices to say that arguability, even if assumed in the Applicants’ favour, does not by itself discharge the stringent threshold to which I have referred. 13. Before leaving this issue I record two matters of form, neither of which is decisive but both of which the Applicants would do well to note. The Memorandum of Appeal annexed to the supporting affidavit is marked "JNG-2", whereas paragraph 6 of that affidavit refers to it as "JNG-1", that being the marking already assigned to the Authority to Act. Further, the annexed Memorandum bears, in its cause title, a reference to Kisumu Miscellaneous Succession Cause No. E074 of 2025, while its body and prayers speak of Kisumu MCSUCCMISC No. E071 of 2025. Where a party asks the Court to halt a suit on the strength of proceedings elsewhere, precision in the identification of those proceedings is not a mere formality. 14. Drawing these threads together, I am not satisfied that this is one of those exceptional cases in which this Court ought to interfere with the Plaintiffs’ right to prosecute the suit they have brought. The Applicants have established that the pending appeals may, if successful, affect the competence of this suit. They have not established that the proceedings before me beyond all reasonable doubt ought not to be allowed to continue, which is the standard the authorities require. The second issue is answered in the negative. ***(iii) Costs*** 1. Costs are in the discretion of the Court under section 27 of the Civil Procedure Act and ordinarily follow the event. The Plaintiffs have succeeded in resisting the application and pray for costs. 2. I am nonetheless persuaded to depart from the ordinary rule. The application, though unsuccessful, was not frivolous and in the exercise of my discretion I direct that each party to bear own costs of the application. **Disposition** 1. In the result, and for the reasons set out above, I make the following orders: - **i. The Notice of Motion dated 16th June 2026 be and is hereby dismissed.** **ii. The 1st, 2nd and 3rd Defendants are at liberty to apply afresh in the event that the Grants of Letters of Administration Ad Litem relied upon by the Plaintiffs are revoked, annulled or set aside by a court of competent jurisdiction, or in the event of any material change of circumstance.** **iii. Each party to bear own costs of the application.** **Orders accordingly.** **DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of: -** **Ms. Awinda for the 1st, 2nd and 3rd Defendants/Applicants** **N/A for the Plaintiffs/Respondents** **Mr. Indimuli for the 4th Defendant** **Mr. Anyul for the 5th and 6th Defendants.** **N/A for the 7th Defendants** **Court Assistant; Joanne Omondi.**