https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3143

Wafula & 4 others v Saenyi & another (Environment and Land Miscellaneous Application E039 of 2025) [2026] KEELC 3143 (KLR) (6 May 2026) (Ruling) Neutral citation: [2026] KEELC 3143 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Miscellaneous Application E039 of 2025 AK Bor, J May 6, 2026 Between Shadrack Wafula 1st Applicant David Wafula 2nd Applicant Titus Juma Wafula 3rd Applicant Vincent Barasa 4th Applicant Protus Mukhebi 5th Applicant and Peter Wanjala Saenyi Respondent and Bonface Wataka Interested Party Ruling 1.This ruling is in respect of three applications brought by the Applicants. In the first application dated 28/10/2025, the Applicants sought leave to file an application for mandamus, prohibition and certiorari against the judgment of Hon. J.R. Ndururi, Senior Principal Magistrate (SPM), delivered on 3/7/2025 in Kimilili CMCC Case No. E003 of 2021. The Applicants swore the supporting affidavit and averred that the Respondent’s father bought four acres of land and paid half the agreed price before he died. They claimed that the Respondent had forged land documents to steal their homesteads and graveyards of their ancestors. They faulted the trial court for omitting to consider the provisions of the Civil Procedure Act and Rules. 2.In the second application dated 4/11/2025, which is indicated to be brought under Order 53 Rules 1 to 7 of the Civil Procedure Act, the Applicants sought stay of execution of the interlocutory judgment delivered on 3/7/2025 and the ruling delivered on 30/10/2025 claiming that the trial court was misled to issue eviction orders yet the late Zetraka Manyonge Wamamili’s 8 sons occupied their shares of land pursuant to Kitale High Court Succession Cause No. 35 of 2020. Further, they sought to have Kakamega High court Succession Cause No. 221 of 2006 expunged from the court record on the ground that the administrator did not involve the Estate of Ameli Munialo Saenyi and Zetraka Manyonge Wamamili. The Applicants sought stay of execution and of the bill of costs. The Applicants swore the supporting affidavit and raised grounds similar to those outlined in their earlier supporting affidavit. 3.The third application is dated 7/2/6 (sic), and in it the Applicants seek stay of execution of the eviction order issued on 6/2/2026 and to have Hon. John Ndururi recuse himself from further conduct of Kimilili CM ELC Case No. 3 of 2021 and for the case to be placed before any other court of competent jurisdiction for determination of the plaintiff’s application dated 3/12/2025. The application was made on the grounds that the trial court entered judgment in favour of the Respondent on 3/5/2025 requiring the Applicants to vacate the suit land within 90 days failing which they would be forcefully evicted at their cost. They contended that the trial court refused to hear their application dated 3/12/2025 because the auctioneers had filed an application on 27/1/2026 which the trial court allowed. This application, which introduces an interested party by the name Boniface Wamalwa Wataka, states that Boniface Wataka lived on the land but was not a party in Kimilili CMELC No. 3 of 2021 yet they were orders to evict him despite not being a party to the suit. The interested party claimed that he feared to file the application before the Kimilili Court because the Learned Magistrate may refuse to hear the application. He urged that the eviction orders were irregularly issued. Boniface Wataka swore the affidavit in support of the application and reiterated that the Learned Magistrate declined to hear the application of stay of execution because the auctioneers had filed an application for execution. 4.The Respondent filed grounds of opposition and contended that the application was defective because no leave was sought to apply for judicial review under Order 53 of Civil Procedure Rules. He pointed out that the only recourse open to the application was to lodge an appeal which they had failed to do. He maintained that the proceedings and decree were conducted by a competent court of law seized with jurisdiction to handle the dispute. The Respondent went on to add that the application for judicial review raised new issues which were not addressed before the SPM at Kimilili. He urged that the application was a misapprehension of the law and should be struck with costs. He was emphatic that the Applicants did not merit the grant of leave and order of certiorari or prohibition to remove into this court the judgment delivered on 21/8/2025. 5.The appeal was canvassed through written submissions. The Applicants submitted that the conditions for grant of stay of execution and leave to file an application for prerogative orders were captured under Order 42 of the Civil Procedure Rules. They faulted the Learned Magistrate for failing to consider their documents on the ground that they were not written in the court’s language. They added that the subject matter of the Kimilili suit was land which was subdivided in 2009 yet the owner died in 1978 having lived on the land since 1966. They urged that they would suffer substantial loss if they were not allowed to file the suit and tender documentary evidence in support of their case. In the further submissions dated 28/10/2025, the Applicants explained that their failure to file an appeal on time was because they instructed an advocate who failed to file documents. They urged the court to determine the judicial review application which they maintained had merit. 6.The interested party filed submissions dated 13/3/2026 and argued that the Respondent’s grounds of opposition did not qualify as such. They relied on Mukisa Biscuits Manufacturing Limited v West End Distributors ltd [1969] EA 696 on what grounds of opposition should consist of. He submitted that the law on injunctions or stay of execution was settled and that Giella v Cassman Brown and Company Limited (1973) E.A set out the grounds for grant of stay of execution. In addition, that the Respondent had filed a transfer which was not registered. The Applicants mixed up legal issues regarding preliminary objections and grounds of opposition as well as the ingredients for grant of injunction and the requirement for stay of execution. 7.The Respondent submitted that no grounds had been demonstrated for the court to grant the leave sought by the Applicants. He pointed out that the Applicants were the defendants in Kimilili SPM ELC Case No. E003 of 2021 which was heard and determined. He contended that the Applicants were raising new issues after a competent court had heard and determined the case. The other point highlighted by the Respondent is that the pleadings filed by the Applicants were shambolic and unclear as to whether they were seeking leave to appeal or pursuing judicial review. The Respondent urged the court to dismiss the applications while asserting that the Applicants had not sought court proceedings to demonstrate their keenness on pursuing the appeal. 8.The issue for determination is whether the court should grant the reliefs sought in the three applications. Regarding the recusal of the Learned Magistrate, that application ought to have been made before the Learned Magistrate and not taken up as a matter on appeal without first affording the judicial officer the opportunity to hear the application seeking his recusal from handling the case. The proper recourse for the Applicants to take if they are aggrieved by the decision of the Learned Magistrate is to challenge the judgment on appeal and not through judicial review proceedings. 9.If the court understands the prayers which the Applicants seek in the applications correctly, it is that they seek stay of execution pending appeal to challenge the decision of the Learned Magistrate. The court notes that the time within which they were to lodge the appeal has lapsed and they did not seek leave to have that time extended by this court. 10.It is in the interest of justice to stay of execution of the judgment delivered in Kimilili CMCC Case No. E003 of 2021 60 days to enable the Applicants lodge and pursue their appeal against the decision of the trial court.The appeal must be filed within the next 14 days.Each party will bear its costs for the applications. DELIVERED VIRTUALLY AT BUNGOMA THIS 6TH DAY OF MAY 2026.K. BORJUDGEIn the presence of: -Mr. Boniface Wataka, Mr. Shadrack Wafula, Mr. Titus Wafula and Mr. Protus Mukheebi- the ApplicantsMr. Joseph Sichangi for the RespondentCourt Assistant- Josephat Bett