https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4270

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAKURU ELC APPEAL NO. E017 OF 2024 ANNIEH WAMUYU WAMBUGU (Suing as the administrator of the estate of Joseph W. Mundiah) ………………………..….…….. APPELLANT/APPLICANT SOLOMON K. RUGUT ………………………………………………….. 1ST RESPONDENT THE DISTRICT LAND REGISTRAR, NAKURU …………..………… 2ND RESPONDENT VERSUS RULING 1. For determination is the Appellant/Applicant’s notice of motion application dated 29th April, 2026; that is expressed to be brought pursuant to Order 24 rule 3, Order 42 rule 6, Order 51 rule 1 of the Civil Procedure Rules and Section 1B,3A and 63(e) of the Civil Procedure Act. It seeks the following orders viz: a) Spent b) Spent. c) Spent. d) That there be a stay of proceedings in Molo Magistrate Court, CMELC E081 OF 2023 that is before the Hon. Samuel K. Mutai,CM, pending hearing and determination of the appeal filed herein. e) Costs of this application abide the outcome of the appeal. NAKURU ELCA E037 OF 2024 – RULING 1 | P a g e 2. The application is predicated on the grounds on the face of the application and the supporting affidavit sworn by ANNIEH WAMUYU WAMBUGU, the administratrix of the estate of the Appellant/Applicant, sworn on the 29th April,2026. The kernel and quintessence of the Applicant’s disposition is that the suit before the lower court is res judicata. 3. She deposes inter alia that the suit property being NAKURU OLENGURUONE/AMALO/332 had already been litigated upon and determined by the superior court in Nakuru HCCC No. 158B of 2005 involving the same parties herein. Corollary, she adjures that there exists a real risk of conflicting decision, judicial embarrassment undermining the authority of the court if the proceeding is to be allowed to continue. She, therefore, asseverate that the appeal raises substantial and arguable issues with a high probability of success which if not granted a stay will render the appeal nugatory. 4. The application has been vivaciously balked by way of replying affidavit sworn by the 1st respondent on the 2nd June,2026. He avers that the lower court rendered a determination in respect to the preliminary objection on the 27th June,2024, which he characterizes as a lucid and well-reasoned decision. It is his consternation that according to the finding of the learned magistrate, he held thus “The subject matter of the 2005 suit related to parcel No. Olenguruone/Amalo/147, whereas the Molo Suit concerns parcel No. Nakuru/Olenguruone/Amalo/332 (see paragraph 10 of the Molo Ruling)”. He thus exhorted that the suit properties are contra-distinct. NAKURU ELCA E037 OF 2024 – RULING 2 | P a g e APPLICANT’S SUBMISSION 5. The Applicant’s counsel filed written submission dated the 8th June,2026. Counsel raises four thematic areas for determination. 6. On the first issue, namely whether sufficient cause had been demonstrated to warrant the grant of a stay of proceedings in Molo CMELC No. E081 of 2023, counsel for the Applicant submitted that the appeal raises bona fide and arguable issues deserving of the Court's consideration. Counsel argued that the grant of a stay of proceedings is a discretionary remedy and that the Applicant had demonstrated sufficient cause to justify the exercise of that discretion in its favour. In support of this position, reliance was placed on Kenya Wildlife Service v James Mutembei (2019) eKLR, where the Court held that a stay of proceedings may be granted where an applicant demonstrates the existence of an arguable appeal and where the interests of justice favour the preservation of the substratum of the appeal pending its determination. 7. On the second issue, namely whether the appeal is arguable and raises substantial questions deserving the Court's consideration, counsel submitted that the appeal raises substantial questions of law that merit determination by the appellate court. Counsel relied on Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others (2013) eKLR, in which the Court held that an arguable appeal is not one that must necessarily succeed, but one that raises at least one bona fide issue worthy of judicial determination. 8. On the third issue, namely whether the appeal would be rendered nugatory if the proceedings in Molo CMELC No. E081 of 2023 were allowed to continue, counsel submitted that unless the proceedings were stayed pending the determination of the NAKURU ELCA E037 OF 2024 – RULING 3 | P a g e appeal, the appeal would face a real risk of being rendered nugatory. Counsel further contended that there exists a genuine likelihood of conflicting judicial pronouncements should the subordinate court proceedings continue. In support of this argument, reliance was placed on Co-operative Bank of Kenya Limited v Banking, Insurance & Finance Union (Kenya) (2015) eKLR, where the Court observed that the purpose of a stay of proceedings is to preserve the integrity of the appellate process. 9. Lastly, on whether the interests of justice favour the preservation of the status quo pending the determination of the appeal, counsel submitted that the interests of justice weigh in favour of granting the stay sought. Counsel, cited the case of Global Tours & Travels Limited, Nairobi HCCC Winding Up Cause No. 43 of 2000, where the Court observed that the grant of a stay of proceedings is a matter of judicial discretion to be exercised in the interests of justice, taking into account the circumstances of each case. 1 st RESPONDENT’S SUBMISSION 10. Conversely, counsel for the 1st Respondent filed submission dated 24th June,2026. Learned counsel has distilled five issues for consideration. 11. On the first issue, namely whether the Applicant has satisfied the threshold for the grant of an order of stay of proceedings pending appeal, counsel for the Respondent submitted that, in exercising its discretion, the Court must balance the competing considerations of the expeditious disposal of cases against the need to preserve the substratum of the appeal. Counsel relied on Kenya Wildlife Service v James Mutembei [2019] eKLR, where the Court reiterated that the grant of a stay of proceedings depends on the peculiar circumstances of each case and whether the interests of justice require the preservation of NAKURU ELCA E037 OF 2024 – RULING 4 | P a g e the subject matter pending the determination of the appeal. Counsel submitted that the present application fails on both counts, as the appeal is not arguable and the Applicant has failed to establish sufficient cause for the grant of the orders sought. 12. On the second issue, namely whether the Applicant's appeal is arguable and raises substantial questions deserving appellate consideration, counsel submitted that an arguable appeal is one that raises bona fide issues worthy of judicial determination. Counsel contended that the Learned Magistrate in Molo delivered a lucid and well- reasoned ruling, making critical findings of both fact and law. Counsel argued that not every appeal is arguable and that an appeal founded on a misapprehension of the law or a misreading of the factual record cannot be regarded as arguable. Reliance was placed on John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & 3 Others [2021] eKLR, where the Court reaffirmed that, for the doctrine of res judicata to apply, there must be identity of the parties, the subject matter, the cause of action, and the issues in dispute. Counsel submitted that the learned trial magistrate correctly applied those principles and that the intended appeal raises no substantial question warranting appellate intervention. 13. On the third issue, namely whether the appeal would be rendered nugatory if the proceedings were allowed to continue, counsel submitted that an appeal is rendered nugatory only where, if successful, it would become academic, pointless, or incapable of conferring any practical benefit upon the successful party. Counsel made reference to the case of Global Tours & Travel Limited (supra), where the Court observed that the relevant test is whether the success of the appeal would be rendered meaningless if a stay is not granted. Counsel submitted that, in the present case, the Applicant had failed to 5 | P a g e NAKURU ELCA E037 OF 2024 – RULING demonstrate such prejudice and that the true purpose of the application is not to preserve the appeal but rather to delay and obstruct the hearing and determination of Molo CMELC No. E081 of 2023. 14. On the fourth issue, namely whether the Applicant's application constitutes an abuse of the court process, counsel submitted that the Applicant's repeated and multiplicity of applications serve no legitimate purpose other than to vex the Respondent, delay the proceedings, and unnecessarily drain judicial resources. Counsel relied on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, where the Court of Appeal held that abuse of the court process includes the use of judicial proceedings for a purpose or in a manner significantly different from their reasonably intended use. Counsel argued that the appellate process is intended to correct errors of law and fact and should not be deployed as a weapon of procedural attrition to delay or obstruct the just determination of disputes. Counsel further relied on National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, where the Court of Appeal held that a review is not an appeal in disguise and is only available on the grounds expressly provided under Order 45 Rule 1 of the Civil Procedure Rules. 15. On the fifth issue, namely whether the balance of convenience and the interests of justice favour the grant or refusal of the orders sought, counsel submitted that granting a stay of proceedings would occasion immense prejudice to the 1st Respondent, who would be denied the opportunity to pursue redress for the alleged continuing trespass and damage to the suit property. Counsel contended that the prejudice to the Respondent outweighs any inconvenience that may be suffered by the Applicant. Reliance was placed on Kenya Breweries Ltd v Godfrey Odoyo [2020] eKLR, where the Court of Appeal emphasized 6 | P a g e NAKURU ELCA E037 OF 2024 – RULING that courts must remain vigilant against abuse of the judicial process and should not permit litigants to exploit procedural mechanisms to engender delay. 16. It will be remiss not to applaud counsel for their industry in coming up with well researched and erudite written submissions buttressing their respective arguments. ANALYSIS AND DETERMINATION 17. Flowing from foregoing, the overarching question for determination is whether the Appellant have met the threshold for stay of proceedings pending the hearing of the appeal of the ruling delivered on the 27th June,2024 in Molo CMELC No. E081/2023. 18. The framework and the test for consideration in stay of proceedings is axiomatic or if I can adopt the colloquial, is old hat. The rule of thumb is that courts need to excogitate the grounds and only grant such an order in the clearest of cases and with certitude. Justice Gikonyo in Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) apodictically stated that “stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent.” 19. The high threshold for stay of proceedings is elucidated further in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that: “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 NAKURU ELCA E037 OF 2024 – RULING 7 | P a g e 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.” “It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 20. Additionally, Justice Ringera in the oft-cited case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 cogently stated thus: “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” NAKURU ELCA E037 OF 2024 – RULING 8 | P a g e 21. The Appellant gravamen is that the suit before the lower court is res judicata having been determined by the superior court in HCCC number 158B/2005 Joseph W. Mundia versus Solomon K. Rugut and another. From the scrutable judgment of Justice Wendoh the suit property is NAKURU/OLENGURUONE/AMALO/332. Indubitably, the suit property in Molo CMELC E081/2023 Solomon K. Rugut versus Joseph W. Mundi and another is NAKURU/OLENGURUONE/AMALO/332. 22. Ex facie and superficially it would appear that both suits relate to the same suit property and between the same parties. Antithetically, the 1st respondent’s Counsel entreaty that the lower court made a finding that the suit properties were different having originated to what he describes as different “map sheets”. Having painstakingly gone through the ruling of the learned magistrate, I do not seem to pinpoint to that finding. The precis of his determination is that there are two distinct parcels of land namely numbers 147 and 332. 23. Has the Applicant satisfied the twin elementary principles? (See Kinyanjui v Ketter & 5 others (Civil Application 31 of 2013) [2013] KECA 378 (KLR) (22 February 2013) (Ruling). 24. I am cognizant and appreciable that an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court. As set out hereinabove, I am of the conscientious view that the Applicant has demonstrated ostensibly that the appeal is of candour and not frivolous; to warrant the issuance of the orders being sought. NAKURU ELCA E037 OF 2024 – RULING 9 | P a g e 25. With respect to the second broad limb, namely whether the appeal would be rendered nugatory if an order of stay of proceedings is not granted, the Court is persuaded that, were the appeal to succeed, the entire proceedings before the subordinate court would have been conducted in vain. The parties would have expended considerable time, costs, and judicial resources in proceedings that would ultimately be rendered futile. More importantly, permitting the subordinate court proceedings to continue while the issues have already been determined by a superior court creates the real possibility of conflicting determinations by the courts. Such an outcome would not only undermine the efficacy of the judicial process but would also erode public confidence in the orderly administration of justice. It is therefore in the interests of justice to preserve the substratum of the appeal by staying the proceedings pending its determination. See Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227. 26. In denouement, I allow the application dated the 29th April,2026. The Appellant shall file and serve their record of appeal within 30 days from the date herein. Costs will be costs in the appeal. 27. Orders accordingly. Dated, signed and delivered in open court at Nakuru this 10th July, 2026 B. M. EKHUBI. JUDGE NAKURU ELCA E037 OF 2024 – RULING 10 | P a g e In presence of: Mr. Maina for appellant – present. N/A for the 1st respondent N/A for the 2nd respondent C/A: Rashid NAKURU ELCA E037 OF 2024 – RULING 11 | P a g e