https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3238

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC NO. E145 OF 2023** **RUAI KIKUYU COMMUNITY CULTURE CENTRE** **(Suing through its trustees CHARLES MURAGE THEURI** **AND MANASSE MUHURO KABUGA ……………………………… PLAINTIFF** **=VERSUS=** **BENSON KABUCHO ………………………………………...…1ST DEFENDANT** **EMBAKASI RANCHING CO. LTD …………………………....2ND DEFENDANT** **STEPHEN MURIGI WANYOIKE ………………………………3RD DEFENDANT** **RULING** 1. Before me for determination is the Notice of Motion dated 30th September 2025, brought under Sections 1A, 1B, 3A of the Civil Procedure Act, Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules, in which the 1st Defendant/Applicant seeks the following orders: 1. ***This Honourable Court be pleased to order that these proceedings be stayed pending the determination of High Court Commercial suit E096 of 2019 -EMBAKASI RANCHING COMPANY LIMITED VS. JAMES MINGI NJOROGE AND 15 OTHERS.*** 2. ***Such further relief as this Court may deem just.*** 3. ***The costs of this application be in the cause.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of the Applicant sworn on even date. **THE APPLICANT’S CASE** 1. The Applicant claimed that the Plaintiff filed this suit seeking the eviction of the 1st Defendant from the suit property. He further stated that he has occupied the property for the past 32 years, having inherited it from his deceased mother, who was allocated the same in 1985. He argued that the Plaintiff was registered as the owner of the suit property in 2020 and that the title documents relied upon were obtained fraudulently with the assistance of the defunct directorship of the 2nd Defendant. 2. He further averred that the 2nd Defendant is embroiled in a directorship dispute which has hindered its ability to determine the ownership of the parcels of land under its control. 3. He argued that the defunct directors, having been voted out by the shareholders, including himself, have nonetheless purported to appoint the firm of Macharia Gakuo and Company Advocates to represent the 2nd Defendant in these proceedings. He maintained that this appointment is prejudicial to him and other shareholders who voted against the defunct directors, as the said firm will, in effect, support the Plaintiff's case. 4. He contended that the resolution of Nairobi High Court Commercial Suit No. E096 of 2019, which directly relates to the legitimacy of the 2nd Defendant's current directorship and is essential for the fair resolution of all land disputes involving the 2nd Defendant, would enable access to the original shareholder register. 5. In conclusion, he urged the Court to allow the application as prayed. **THE PLAINTIFF’S CASE** 1. The Plaintiff filed a replying affidavit sworn by Charles Murage Theuri in opposition to the application. The deponent averred that the Plaintiff has no influence over the affairs or decisions of the 2nd Defendant. 2. He further averred that Nairobi HCCC E096 of 2019 is unrelated to the present suit, as it concerns the 2nd Defendant’s directorship. He stated that by a ruling of that Court dated 30th July 2019, the current directors were directed to remain in office. He asserted that these directors have, at all material times, made decisions regarding the conduct and defence of this suit, including the appointment of its advocates. **THE 2ND DEFENDANT’S CASE** 1. The 2nd Defendant filed a replying affidavit sworn by Godffrey Muhuri Muchiri, sworn on 28th November 2025, in opposition to the application. The deponent averred that on 30th July 2019, Hon. Lady Justice Grace Nzioka, in High Court Commercial Case No. E096 of 2019, issued status quo orders directing that the directors then in office remain in office and that those appearing on the company's CR-12 Form remain as such. He stated that pursuant to those orders, the directors lawfully in office convened a board meeting on 14th March 2025 and resolved to appoint the firm of Macharia Gakuo and Company Advocates to act for the 2nd Defendant in the present matter. 2. He further averred that the dispute between the current directors and those listed in the CR-12 is pending before the High Court. In this regard, he referred to the ruling of Hon. Lady Justice Njoki Mwangi dated 28th July 2023, where the Court, after considering the earlier orders of Hon. Lady Justice Grace Nzioka, found that the directors listed on the CR-12 were barred from assuming any official duties pending the determination of the dispute. He further relied on the decisions by Hon. Lady Justice Lucy N. Mbugua in ELC Case No. E221 of 2023 and Hon. Pamela Achieng in ELC Case No. E453 of 2024, which confirmed the respective holdings above. 3. He dismissed the 1st Defendant's allegations that the directors in office facilitated the fraudulent acquisition of title documents as unfounded, arguing that they were intended to tarnish the directors' reputation. He maintained that the current directors are the lawful office holders by virtue of the Court's status quo orders. He argued that the existence of a shareholders' register listing all allocated properties rendered the allegation that justice depended on which side of the directorship dispute a shareholder stood wholly unfounded. 4. He contended that the firm of Macharia Gakuo and Company Advocates was properly on record, having been appointed by the directors lawfully in office. He argued that the 1st Defendant's objection to the appointment was unfounded as the firm represented a different party. He further averred that the 2nd Defendant continued to operate normally and was ready to provide all necessary documents to enable the Court to reach a just determination. 5. He maintained that the application is intended to hinder and delay justice contrary to the overriding objective under Sections 1A and 1B of the Civil Procedure Act. 6. In conclusion, he urged the Court to uphold the 2nd Defendant's lawful representation and dismiss the application with costs. **THE RESPONSE** 1. In a further affidavit dated 30th September 2025, the Applicant produced the pleadings in High Court Commercial Suit No. E096 of 2019, Embakasi Ranching Company Limited v The Registrar of Companies, James Mingi Njoroge, and 15 others, arguing that they are necessary since this Court was not seized of that matter. 2. He emphasized that the 2nd Defendant is a crucial party in this suit, as its evidence is the main factor in resolving disputes involving its shareholders. He maintained that the evidence to be presented by the 2nd Defendant must be impartial to prevent a miscarriage of justice. 3. He asserted that the final determination of High Court Commercial Suit No. E096 of 2019 would significantly affect decisions in other cases involving the 2nd Defendant, depending on which faction of directors testified, and could lead to multiple retrials. In conclusion, he urged the Court to allow the application in the interest of justice. 4. The application was canvassed by way of written submissions. **THE 1ST DEFENDANT/APPLICANT’S SUBMISSIONS** 1. The 1st Defendant relied his submissions dated 3rd February 2026. 2. On behalf of the Applicant, Counsel submitted that the 2nd Defendant is embroiled in a leadership dispute stemming from a vote of no confidence by its shareholders, who had elected a new board after losing confidence in the previous directors. Counsel further submitted that the ousted directors responded by filing High Court Commercial Suit No. E096 of 2019, challenging the validity of that election. 3. Counsel further submitted that the principal grievance underlying the ouster vote was that the defunct directors had been allocating shareholders' land to non-shareholders and issuing certificates, in violation of the company's memorandum and articles of association. Counsel contended that the shareholders had consequently lost their allotments, along with the denial of allotment letters and transfer documents. 4. Regarding the Plaintiff's standing, Counsel submitted that the Plaintiff, who is not a shareholder, was allocated the 1st Defendant's home, which he had lawfully occupied without any interruption for 33 years. Counsel argued that a non-shareholder cannot legally own land held under the 2nd Defendant. 5. Regarding the conflict of interest, Counsel argued that the firm of Macharia Gakuo and Company Advocates was heavily involved in the affairs of the 2nd Defendant, as it had previously represented the defunct directors in Commercial Suit No. E096 of 2019. It was submitted that the firm could not remain impartial in the current proceedings and that its appointment created a clear conflict of interest. Counsel contended that the 2nd Defendant's role was to assist the Court in identifying the shareholders and their respective land allocations, and that allowing a firm representing the very board accused of unlawfully alienating shareholders' properties to represent the 2nd Defendant would amount to misleading the Court. 6. Counsel cited **Kenya Wildlife Service v James Mutembei (2019) eKLR**, where Gikonyo J held that a stay of proceedings is a grave judicial action that seriously interferes with a litigant's right to conduct litigation and impinges upon the right of access to justice and the right to a fair trial. 7. Counsel submitted that the application was filed timeously as it was brought barely two months after the ruling of 24th July 2025. Counsel further submitted that the 1st and 3rd Defendants are actively occupying the suit properties, whereas the Plaintiff has never been in possession of any of them. Counsel argued that no party had demonstrated that it would suffer prejudice if the proceedings were stayed. 8. Counsel further submitted that proceeding with the matter risked a final determination based on evidence presented by a board that had acted ultra vires, which could lead to retrials and render families homeless on the basis of misleading evidence. Counsel submitted that the outcome of that suit would determine both the legitimate leadership of the 2nd Defendant and the viability of evidence adduced in all cases touching on land held under the company. Accordingly, Counsel urged the Court to stay the proceedings pending the final determination of Commercial Suit No. E096 of 2019. **THE PLAINTIFF’S SUBMISSIONS** 1. The Plaintiff filed its submissions dated 17th February 2026. 2. On behalf of the Plaintiff, Counsel submitted that the Applicant had failed to meet the threshold for the grant of stay of proceedings. 3. Counsel submitted that the application failed to satisfy the conditions outlined in Order 42 Rule 6(2) of the Civil Procedure Rules, as no appeal had been filed. Counsel further submitted that Nairobi HCCC No. E096 of 2019 is not connected to the present suit as the parties involved and the subject matter in that suit are different from those in the present proceedings. 4. Regarding representation, Counsel submitted that the ruling issued in Nairobi HCCC No. E096 of 2019 on 30th July 2019 remained in force pending the hearing and determination of that suit. Counsel contended that by virtue of that ruling, the directors who had signed the resolution dated 5th May 2025 were the bona fide office holders duly authorised to represent the 2nd Defendant in all proceedings, including the present suit. It was further submitted that all acts lawfully undertaken by those directors in their capacity as such would remain valid, binding and effective, and would be duly adopted and ratified by any directors subsequently confirmed by the Court upon final determination of that suit. 5. Counsel argued that the Applicant has not established grounds to warrant a stay of this suit or any other proceedings involving the 2nd Defendant. 6. Counsel relied on **Halsbury's Laws of England, 4th Edition, Vol. 37, page 330,** which states that: “***A stay of proceedings was a serious, grave and fundamental interruption of a party's right to litigate on the substantive merits of his case, and that the court's general practice was that a stay ought not to be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.”*** 1. Further reliance was placed on **Global Tours and Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000**, where it was held that in deciding whether to order a stay, the Court ought to weigh the pros and cons of granting or refusing the order, having regard to such factors as the need for expeditious disposal of cases, the prima facie merits of any intended appeal, the scarcity and optimum utilisation of judicial time, and whether the application had been brought expeditiously. 2. In conclusion, Counsel urged the Court to dismiss the application with costs. **THE 2ND DEFENDANT’S SUBMISSIONS** 1. The 2nd Defendant filed its submissions dated 24th February 2026 2. On behalf of the 2nd Defendant, Counsel submitted that the Court should not stay the proceedings here due to a management dispute pending elsewhere, especially when a competent Court has preserved the company's operations. 3. On the applicable law, Counsel relied on **Halsbury's Laws of England, 4th Edition, Vol. 37, page 330,** to submit that stay of proceedings is a serious, grave and fundamental interruption of a party's right to litigate on the substantive merits of his case, and that the power ought to be exercised sparingly and only in exceptional circumstances, where the proceedings are shown to be frivolous, vexatious, or manifestly groundless. 4. Further reliance was placed on **Global Tours and Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000**, where the Court held that the grant of a stay was a matter of judicial discretion to be exercised in the interest of justice, with regard to such factors as the need for expeditious disposal of cases, the prima facie merits of any intended appeal, the scarcity and optimum utilization of judicial time, and whether the application had been brought expeditiously. 5. Counsel argued that the 2nd Defendant is a separate legal entity and that an internal dispute among factions of directors does not dissolve the company, suspend its legal status, or strip it of the capacity to litigate. Counsel contended that even if the High Court were to find that a different set of directors is lawful, the company would remain the same juristic person and the proceedings would not cease due to internal governance disputes. 6. Regarding the allegations of misconduct, Counsel submitted that no Court had made any finding against the current directors, and that the issue of land allocation was to be determined through evidence at trial. Counsel further submitted that the Plaintiff had failed to establish any nexus between Commercial Suit No. E096 of 2019 and the present proceedings, or any prejudice that would result if the stay were denied. 7. Counsel submitted that the issue of representation had already been determined in the ruling delivered on 10th July 2025, which found that the firm of Macharia Gakuo and Company Advocates, having been instructed by the directors currently in office, was properly on record for the 2nd Defendant. It was also determined that the advocate previously appointed by the faction relying on the CR-12 had been struck off the record. Counsel contended that the determination had not been set aside or appealed, and that the 1st Defendant could not reintroduce the issue indirectly through an application for stay of proceedings. 8. Counsel submitted that the Plaintiff had failed to demonstrate any prejudice that would arise if the matter proceeded, and that the determination of Commercial Suit No. E096 of 2019 would not resolve the issues in the present suit. Counsel asserted that a stay would prejudice the Plaintiff and the 2nd Defendant and that it would undermine the overriding objective of the expeditious disposal of cases. Counsel argued that the Defendant was seeking to introduce collateral corporate governance issues to stall the proceedings and invited the Court to decline to permit its process to be used as a tool for delay. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits, and the rival submissions, the only issue that arises for determination is whether the proceedings herein should be stayed pending the determination of Nairobi High Court Commercial Suit No. E096 of 2019. 2. The 1st Defendant has moved this Court under, among other provisions, Order 42 Rule 6 of the Civil Procedure Rules, which provides for a stay of execution or proceedings pending an appeal. 3. The present application does not arise from any appeal. Commercial Suit No. E096 of 2019 is an independent suit pending before the High Court; it is not an appeal against any order or decree of this Court. 4. The general principles which guide the Courts whenever they are invited to exercise jurisdiction to stay proceedings are best summarized in **Halsbury’s Law of England, 4th Edition, Vol 37 at pages 330 and 332** as follows: ***“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 practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.”*** 1. In **Ferdinard Ndung’u Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others [2013] eKLR,** the Court held that: ***“A stay of proceedings involves arresting or stopping proceedings. It is a tool used to suspend proceedings to await the action of one of the parties in regard to some step or some act (see Black’s Law Dictionary). This implies that the rationale for stay is the pendency of an act or step either required by the court or sought by a party. It may be grounded on a statutory provision or on the need of a party and based on a plea for the plenary exercise of the court’s discretion.”*** 1. A stay may be granted where a matter is sub judice. **Section 6 of the Civil Procedure Act,** provides that: “***No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.*** 1. For the sub judice rule to apply, three conditions must be satisfied: the matter in issue must be directly and substantially in issue in both suits; the suits must be between the same parties or parties claiming under them; and the earlier suit must be pending before a court of competent jurisdiction. 2. A perusal of the Amended Plaint in High Court Commercial Suit No. E096 of 2019 and the Plaint in the present proceeding show that the parties involved, the causes of action and the reliefs sought are materially different. HCCC Commercial Suit No. E096 of 2019 relates to the legality of the 2nd Defendant directorship and seeks to restrain certain persons from assuming office and to quash their registration as directors. Conversely, the present suit concerns a dispute over land ownership, purportedly allocated by the 2nd Defendant to the Plaintiff. Based on the foregoing, I find that the doctrine of sub judice rule does not apply. 3. The 1st Defendant's argument for a stay of proceedings is based on the assertion that the outcome of Commercial Suit No. E096 of 2019 will determine which faction of directors legitimately represents the 2nd Defendant. It was argued that evidence presented by an unlawfully constituted board could compromise the proceedings and lead to retrials. 4. The issue of the 2nd Defendant's lawful representation was determined by the Court's ruling in Commercial Civil Case No. E096 of 2019 dated 30th July 2019, which ordered that the directors in office shall remain in office. These orders have been upheld in subsequent rulings by that Court dated 28th July 2023. It is not disputed that the resolution to appoint the firm of Macharia Gakuo & Company Advocates was made by the directors in office. 5. The overriding objective under Sections 1A and 1B of the Civil Procedure Act enjoins this Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. An indefinite stay contingent on the outcome of separate proceedings before another Court would be contrary to that objective and would prejudice the parties herein. 6. In light of the foregoing, I find that the 1st Defendant has not demonstrated sufficient cause to warrant the grant of a stay of these proceedings. In the end, I find that the application dated 30th September 2025 lacks merit and is hereby dismissed with costs. **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF MAY, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Wanjiru for the Plaintiff Ahmed – Court assistant