https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3452

Njoroge (Suing through his Attorneys Rachel Nduta Ng’ang’a and Jeff Ndirangu Ng’ang’a) v Ndiritu & 5 others (Environment and Land Appeal E007 of 2026) [2026] KEELC 3452 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3452 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Environment and Land Appeal E007 of 2026 LN Mbugua, J May 21, 2026 Between Simon Ng’ang’a Njoroge (Suing Through His Attorneys Rachel Nduta Ng’Ang’A And Jeff Ndirangu Ng’Ang’A) Appellant and Samuel Maina Ndiritu 1st Respondent Issac Karanja Ndiritu 2nd Respondent Moses Njonge Karanja 3rd Respondent Kiahiu Karanja 4th Respondent Esther Nyambura Mwangi 5th Respondent Daniel Kinyua Mwangi 6th Respondent Ruling 1.Before me is a notice of motion application dated 26.3.2026 where the appellants/Applicants seek orders that there be a stay of the proceedings of Nyahururu NC ELC No. 319 of 2018 pending the hearing of this appeal. The application is premised on grounds on the face of the application and the supporting affidavit of Rachel Nduta. The applicants contend that on 16.2.2026, a ruling was delivered by the trial court in which their witness statements filed on 30.10.2025 were expunged for having been filed without leave of the court. The appellants are dissatisfied with the said ruling hence this appeal. They contend that they do not have any other witness, thus they will be condemned unheard. 2.In opposition thereof, the respondents filed a replying affidavit sworn on 12.5.2026 by the 1st respondent. He avers that the matter came up for defence hearing on 16.2.2026 when all parties confirmed that they were ready to proceed. That during the hearing of the case for the 2nd defendant/ appellant, the latter purported to call witnesses who recorded statements after the closure of the plaintiff’s case without leave of the court. Thus the appellants had embarked on trial by ambush. The respondents pray for the dismissal of the application. 3.I have considered all the arguments proffered herein. The issue falling for determination is whether the proceedings before the trial court should be stayed to await the determination of this appeal. In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 , cited in Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] eKLR, the court had this to say on the issue of stay of proceedings;“As 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 utilization of judicial time and whether the application has been brought expeditiously”. 4.The right to a fair hearing is enshrined in the Constitution of Kenya at Article 50 (1) of the Constitution. This entails, no trial by ambush, but also encompasses the right to be heard. For the court to determine whether the ruling delivered on 16.2.2026 took into account the principles of what amounts to a fair hearing, the court would need to peruse the record of the trial court. 5.As it were, the matter is at the infancy stage and the said record is yet to be availed. It is noted that the case before the trial court is scheduled for hearing on 25.5.2026. It is only fair and just that the proceedings be put on hold to await the hearing of the appeal. 6.In the circumstances, the application dated 26.3.2026 is allowed with no orders as to costs. The order on stay of proceedings shall remain in force for a period of 5 months only. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 21ST DAY OF MAY 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Ms Kinuthia for AppellantLochi h/b for Ms Wacheke for RespondentNancy Mwangi – Court Assistant