https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4738

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CASE NO. 1499 OF 2013** **SIDHI INVESTMENTS LTD..................................PLAINTIFF/APPLICANT** **-VERSUS-** **UCHUMI SUPERMARKETS LTD........................................1ST DEFENDANT** **KASARANI MALL LTD......................................................2ND DEFENDANT** **RULING** 1. There are two applications coming up for determination in this matter. The first is the notice of motion dated 7th November, 2025 filed by the plaintiff/applicant expressed to be brought under **Sections 1A, 1B** and **3A** of the **Civil Procedure Act**, and **Order 51 Rule 1** of the **Civil Procedure Rules** seeking the following orders:- 2. ***That this honourable court be pleased to issue an order staying further*** ***proceedings herein pending the hearing and determination of Civil Appeal No. E827 of 2025: Sidhi Investments Ltd vs Kasarani Mall Ltd & Others and Civil Appeal no. E455 of 2025; Kasarani Mall Limited and Another v The Principal Secretary, Ministry of Defence & Others.*** 3. ***That the costs of this application and the suit be provided for.*** 4. The application is premised on the grounds *inter alia* that the claim arises from an agreement entered into between the parties in March 2025 with respect to the parcels of LR. no. 5875/2 (IR 85371), the suit property and LR no. 23393 (original no. 11622/3). The application is further supported by the affidavit of Alex Trachtenberg, the director of the plaintiff/applicant sworn on even date. He deposed that by an agreement entered into by the parties, the plaintiff/ applicant agreed to purchase the suit properties from the defendants/respondents for a total consideration of Kshs.118,000,000/-, and that pursuant to the said agreement, they paid Kshs.11,800,000/=, being the agreed 10% deposit of the purchase price. 5. The plaintiff/ applicant deposed that following the payment of the deposit of the purchase price, the defendants/respondents failed to complete the transaction, necessitating the filing of the present suit to seek an order of specific performance. That during the pendency of this suit, the parties in this suit came to an amicable settlement at the sum of Kshs.841,000,000/-, representing the value of the plaintiff/ applicant’s interest in the properties, as full and final settlement of the disputes between the parties. 6. That furtherance of the aforesaid agreement, on 20th September, 2018 the 2nd defendant/respondent agreed to the sale of the suit properties to Jewel Complex Ltd for the sum of Kshs.2,800,000,000/=. That was a term of the agreement that the purchase was subject to the removal of a caveat placed on the suit title. Further, that the 2nd defendant/respondent’s board of directors, by board resolution dated 14th December 2018, resolved that a lien in favour of KCB Bank Kenya Ltd was to be done. In return, the bank would issue an undertaking to the plaintiff/applicant for the settlement amount. Through another board resolution dated 9th April 2019, the 2nd defendant/respondent’s board resolved that KCB bank would hold the agreed settlement amount and issue an undertaking to release the said finds to the plaintiff/ applicant. 7. The plaintiff/applicant deposed that KCB issued two undertakings dated 26th April, 2019 which the bank was to, out of the proceeds of the sale of the suit properties, pay the settlement amount to its advocates. However, before the sale of the suit properties, the plaintiff/applicant discovered that the Kenya Defence Forces (KDF) had taken possession of one of the properties known as LR No.5875/2(I.R 85371) on behalf of the department of defence which prompted the defendants/ respondents to file ELC Case E010 of 2022, which was consolidated with this suit by consent of the parties on 28th July, 2022. 8. He deposed that following this claim by the department of defence, the 1st defendant/respondent proposed to vary the terms of the settlement agreement, that they pay Kshs.50,000,000/= from the proceeds of the sale of LR No. 223393 immediately, with the balance to be paid after the conclusion of ELC Case E010 of 2022, which offer was accepted by the plaintiff/ applicant. That consequently, L.R. no. 23393 was sold and Kshs.50,000,000.00/= paid to the plaintiff/applicant. The balance was to become payable upon conclusion of ELC No. E010 of 2022. This agreement was formalized by deed of settlement dated 27th December, 2023 and that the said property was sold, and Kshs.50,000,000/= paid to the plaintiff/applicant. 9. He deposed that the two suits, this and ELC No. E010 of 2022 were deconsolidated by consent on 5th March, 2024 with the understanding that the issues directly between the plaintiff/applicant and the defendants/respondents would remain pending in this suit, while the ELC no. E010 of 2022 matter would proceed on issues concerning the ownership claim by the department of defence and the defendants/respondents. 10. He went on to depose that following the deconsolidation, the issues remaining for determination in this suit relate to the enforcement and performance of the settlement agreement between the parties herein. However, despite the deconsolidation, in the judgment delivered on 19th May, 2023 by Hon. Justice Oguttu Mboya in ELC No. E010 of 2022, the plaintiff/applicant deposed and contends that the court proceeded as though the two suits had not been deconsolidated, including making findings on its claim to the suit property and the validity of the agreement between the parties. In particular, the court held that the department of defence is the lawful owner of the suit property, cancelled the title in the name of the 2nd defendant/respondent and found that the plaintiff/applicant was not an innocent purchaser and had no basis for specific performance. 11. Aggrieved by those findings, the plaintiff/applicant has filed civil appeal no. E827 of 2025; Sidhi Investments Limited v. Kasarani Mall Limited & Others, seeking to reverse the said determination and restore its proprietary and contractual interests in the suit property. He deponed that the defendants/respondents have also filed civil appeal no. E455 of 2025; Kasarani Mall Limited & Another v. The Principal Secretary, Ministry of Defence & Others, challenging the finding that the department of defence is the proprietor of the suit property and other aspects of the judgment. 12. The plaintiff/applicant deposed that the appeals and the present suit arise from the same subject matter, and raise overlapping issues concerning the ownership and legal status of the suit property, and accordingly the enforceability of the settlement agreement, and it is therefore necessary and appropriate that these proceedings be stayed, pending the determination of both appeals as it is only the court of appeal that has the mandate to set aside or vary this court’s judgment. 13. The plaintiff/applicant deposed that proceeding with this suit before determination of the appeal pending before the court of appeal would risk contradictory decisions, jurisdictional conflict, and potential nullity of any orders made herein if the superior court alters the findings of this court. Further, that the stay sought will ensure judicial coherence, avoid duplication, and uphold the integrity of the appellate process by allowing the superior court to conclusively resolve the ownership and contractual issues before this court proceeds further. 14. Lawrence Ngao, the chief executive officer of the 2nd defendant/respondent filed the replying affidavit sworn on 30th of January, 2026 in response thereto. He deposed that the plaintiff/ applicant sought to be joined as a 5th defendant in ELC no. E010 of 2022, and that the court in that suit was clothed with the jurisdiction to hear and determine the issues raised therein with finality. Therefore, there is nothing further left to be determined in this case. 15. The second notice of motion is dated 10th November, 2025 filed by the 2nd defendant/respondent, and it is expressed to be brought under **Section 19 (2)** of the **Environment and Land Court Act** and **Section 7** of the **Civil Procedure Act** and **Order 51 Rule 1** of the **Civil Procedure Rules** seeking the following orders: - 16. ***The suit be struck out.*** 17. ***Costs of the suit and the application be awarded to the defendants.*** 18. This application is premised on the grounds on its face. It is further supported by the affidavit of Lawrence Ngao, the chief executive officer of the 2nd defendant/respondent sworn on even date. The 2nd defendant/respondent deposed that pursuant to the consent dated 27th December, 2023 the plaintiff/applicant’s claim in relation to LR no. 23393 (Original No 11622/3) was settled, and the suit was to proceed regarding the plaintiffs claim in LR 5875/2. Secondly, and pursuant to a consent dated 17th May 2024, this suit was stayed pending the hearing and determination of E010 of 2022 - Kasarani Mall Ltd -v- Principal Secretary Ministry of Defence and Others. 19. It was further deposed that the plaintiff/applicant applied to be joined as the 5th defendant in ELC E010 of 2022, and prayed, inter alia, that it be declared to be the registered owner of LR 5875/2, and in the alternative, it be compensated by being paid Kshs.714,850,000/-. Further, that in this suit, the plaintiff/applicant had also sought for inter alia, an order that LR no. 5875/2 be transferred to it or in the alternative, it be paid Kshs.841,000,000 by the defendants/respondents. 20. The 2nd defendant/respondent deposed that judgment in E010 of 2022 was delivered on 19th May 2025, where Ogutu Mboya J, *inter alia,* ordered cancellation of the certificate of title to LR no. 5875/2. It was further deposed that the issues in this suit (ELC 1499 of 2013) were substantially similar to the issues raised by the plaintiff/applicant in its pleadings in ELC case no. E010 of 2022, which were considered. Thus, this suit is *res judicata* and ought to be struck out. 21. The plaintiff/applicant opposed the application through the replying affidavit of Alex Trachtenberg sworn on 23rd December, 2025. He deposed that although ELC no. E010 of 2022 was previously consolidated with this suit, the court ordered deconsolidation on 5th March, 2024 upon determining that the suit raised distinct issues. Thus, this suit is not barred by the doctrine of *res judicata,* as the parties were distinctly different and that the determination only narrowed down on the legality and validity of the 2nd defendant/respondent’s title to LR.5875/2 and the lawfulness of the ministry of defence occupation of the same, while in this case, the main issue is whether there was a valid settlement agreement between the parties herein, which issue is yet to be determined. The plaintiff/applicant deposed that the application by the 2nd defendant/respondent is devoid of merit and ought to be dismissed with costs. 22. The applications was canvassed through written submissions. The plaintiff/applicant filed two sets of written submissions dated 6th March, 2026. The 2nd defendant/respondent filed its written submissions dated 6th March, 2026 with regard to the latter notice of motion. 23. I have considered both applications, the replies thereof and the written submissions filed. The two issues for determination are as follows:- 24. *Whether the suit is res judicata; and* 25. *Whether the plaintiff/applicant is entitled to stay of further proceedings.* 26. The 2nd defendant/respondent argued that when the plaintiff/applicant was joined in ELC E010 of 2022 and the same was finally determined by Hon. Justice Oguttu Mboya on 19th May 2025, the issues herein were conclusively determined and thus this suit offends the doctrine of *res judicata*. The test for determining the application of the doctrine of res-judicata in any given case is spelt out under **Section 7** of the **Civil Procedure Act**, which provides that:- ***“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”*** 1. In **Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR**, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is: ***“(a) The suit or issue was directly and substantially in issue in the former suit.*** ***(b) That former suit was between the same parties or parties under whom they or any of them claim.*** ***(c) Those parties were litigating under the same title.*** ***(d) The issue was heard and finally determined in the former suit.*** ***(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”*** 1. The **Civil Procedure Act** has also provided explanations with respect to the application of the *res judicata* rule. Explanation 1 to 6 are in the following terms:- ***“Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.*** ***Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.*** ***Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.*** ***Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.*** ***Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.*** ***Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.*”** 1. In applying the above criteria to this suit, the defendants/respondents in this suit were the plaintiffs in ELC no. E010 of 2022. The defendants were the Principal Secretary Ministry of Defence, the Attorney General, Solio Construction Company Ltd, the Registrar of Titles and the plaintiff/applicant was later joined as the 5th defendant. The reliefs sought in that suit were for declarations that the occupation of KDF on the suit property known as LR No. 5875/2 was illegal and that the same belonged to the plaintiff/applicant, as well as a permanent injunction barring the defendants/ respondents from interfering with the suit property. The said case was dismissed together with the 5th defendant’s counterclaim (the plaintiff/applicant herein) and the defendants/respondents were ordered to surrender the suit title for cancellation. The parties herein in this case and in that suit both filed separate appeals against this decision. 2. On the other hand, this suit filed by the plaintiff/ pplicant seeks orders of a permanent injunction barring the defendants/respondents from selling LR. no.23393(Original No.11622) and LR No.5875/2(I.R 85371) and seeks an order of specific performance directed to the defendants/respondents to honour their agreement for sale. Thus, while the parties herein were also parties in ELC E010 OF 2022, the issues are markedly different, even though LR No.5875/2(I.R 85371) appears in both suits. In this suit, the plaintiff/ applicant raises issue about the various agreements that the parties have had over the suit properties herein, while in ELC E010 OF 2022 the main issue was the occupation by the KDF on LR No.5875/2(I.R 85371). I have evaluated both suits and have found that this suit does not offend the doctrine of *res judicata,* because the matters in issue in both suits are markedly different. 3. The plaintiff/applicant has sought stay of further proceedings in this suit, arguing that they seek to reverse the said determination in ELC no. E010 of 2022 at the court of appeal and restore its proprietary and contractual interests in the suit properties. Due to the overlapping issues raised by the judgment of the court in that case, they state that stay is necessary to avoid the risk contradictory decisions, jurisdictional conflict, and potential nullity. 4. Stay of proceedings is provided for by **Order 42 Rule 6(1)** of the **Civil Procedure Rules** which provides that: ***“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”*** 1. In the case of **Cosmas Mokua Magembe, John Nyangaresi Magembe & Sabella Moraa Magembe v Elias Onsarigo Magembe & Wilfred Nyambariga Magembe [2020] KEHC 7292 (KLR),** it was held as follows: - ***“The threshold for stay of proceedings is discussed in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 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 proceeding beyond all reasonable doubt ought not to be allowed to continue.”*** ***“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”*** 1. From the above, because of the grave interruption of the right to trial, stay of proceedings has a high threshold for grant. In the case of **William Odhiambo Ramogi & 2 Others v. Attorney General & 3 others [2019] eKLR,** the court established the criteria for stay of proceedings enumerated as follows here below:- ***“a. First, there must be an appeal pending before the higher court;*** ***b. Second, where such stay is sought in the court hearing the case as opposed to the higher court to which the appeal has been filed, and there is no express provision of the law allowing for such an application, the applicant should explain why the stay has not been sought in the higher court.*** ***This is because, due to the potential of an application*** ***for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the court to which an appeal is******preferred because such a court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly.*** ***c. Third, the applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;*** ***d. Fourth, the applicant must demonstrate that the appeal would be rendered nugatory if the stay of proceedings is not granted;*** ***e. Fifth, the applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and*** ***f. Sixth, the applicant must demonstrate that the application for stay was led expeditiously and without delay.”*** 1. On the first limb, I note that there are already two pending appeals against the said decision in ELC E010 of 2022. Secondly, since the appeal was not against any decision rendered in this suit, it is explainable why such stay of proceedings was not sought at the court of appeal. Third, the plaintiff/applicant seems to prima facie have an arguable appeal on the issues determined upon, from their memorandum of appeal dated 3rd October, 2025. 2. The court also notes that if the proceedings in this matter were to continue uninterrupted and a judgment made, the issues already determined in ELC no. E010 of 2022 or to be determined by the court of appeal may overlap and contradict the findings of this court. Ringera, J (as he then was), in **Global Tours & Travels Limited (Nairobi HC Winding Up Cause No 43 of 2000)** had this to say on this matter of stay of proceedings:- ***“I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilisation of judicial time and whether the application has been brought expeditiously.”*** 1. Upon weighing the circumstances of this application for stay of proceedings dated 7th November, 2025 the court finds in favour of granting the same, pending the final hearing and determination of Court of Appeal civil appeals nos. E827 of 2025 and E455 of 2025. The 2nd defendant/respondent application dated 10th November, 2025 is hereby dismissed for the reasons given above. Costs to be in the cause. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 23RD DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **23/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Leonard Githua holding brief for Mr. Kamau Karuri (Senior counsel) for the Plaintiff* *Mr. Mwihuri Wilson for both Defendants*