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ELCDismissedELCLC No. E010 of 2023

Wachira (Suing as administrator of the Estate of Esther Nungari Kinuthia) & 2 others v Duntowobi & 2 others (Land Case E010 of 2023) [2026] KEELC 2837 (KLR)

Environment and Land Court
14 May 2026
4,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to pause a land case because the same stay request was already pending before the Court of Appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (O. A. Angote, J) disposed of a Notice of Motion dated 9th July 2025 by the 1st Defendant, Abdiweli Aden Duntow, seeking a stay of further proceedings in ELC Case No. E010 of 2023 pending his application for stay under Rule 5(2)(b) of the Court of Appeal Rules and pending his intended appeal against rulings of 22nd April 2024 (finding him in contempt of status quo orders) and 29th May 2025 (dismissing his review application). He argued that continuance of proceedings, including mitigation and sentencing, risked committal to civil jail before the appellate court could determine the propriety of the contempt finding. The Plaintiffs and the 3rd Defendant opposed, describing the motion as abusive, duplicative and an exercise in forum shopping, since a parallel stay application (Civil Application No. E437 of 2025) was already pending and certified urgent before the Court of Appeal. Framing the sole issue as whether the applicant had demonstrated conditions warranting a stay of proceedings pending appeal, the court held that it could not entertain the plea because the Court of Appeal was already seized of the identical question; entertaining it would encroach on the appellate court's jurisdiction and invite parallel determinations. Interim relief of that nature fell within the province of the Court of Appeal. The application was found devoid of merit and dismissed with costs. The court did not disturb its prior rulings.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st Defendant/Applicant has satisfactorily demonstrated the conditions warranting the grant of stay of proceedings pending appeal

Key legal issues

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01

Whether the trial court can grant a stay of proceedings where a parallel application for the same relief is pending before the Court of Appeal under Rule 5(2)(b)

Holding

The court declined jurisdiction, holding that once the appellate court is seized of the stay question, entertaining the same plea in the trial court would invite parallel determinations.

Reasoning

The court observed that the 1st Defendant had already moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, and that the appellate court had certified the application urgent and given directions for expeditious hearing by a three-judge bench. The question of stay was therefore live before the Court of Appeal. The trial court reasoned that entertaining the same plea would encroach on the appellate court's jurisdiction and risk parallel determinations on the same question.

p. 20
02

Whether a trial court may grant interim stay pending the hearing of a stay application before the Court of Appeal

Holding

No - such interim relief falls within the province of the Court of Appeal once properly moved under Rule 5(2)(b).

Reasoning

The court treated the requested stay as interim in nature pending the appellate court's determination, and held that once the Court of Appeal is properly moved under Rule 5(2)(b), interim relief of that kind falls within that court's province, not the trial court's. The application was therefore found devoid of merit and dismissed.

p. 20

Legal principles established

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  • Once a party elects to move the Court of Appeal for stay of proceedings, the trial court cannot simultaneously entertain a similar prayer, as that would encroach on the appellate court's jurisdiction.

Court orders

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  1. 1.The application dated 9th July, 2025 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules and the inherent jurisdiction preserved under Section 3A of the Civil Procedure Act

Relief refused

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Stay of further proceedings in ELC Case No. E010 of 2023 pending the hearing and determination of the application under Rule 5(2)(b) of the Court of Appeal Rules

The Court of Appeal is already seized of the stay application; entertaining it here would encroach on the appellate court's jurisdiction and invite parallel determinations.

p. 20

Stay of further proceedings pending the intended appeal against the rulings of 22nd April 2024 and 29th May 2025

Such relief is interim in nature and falls within the province of the Court of Appeal once properly moved under Rule 5(2)(b).

p. 20

Costs

The application is dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Once a party elects to move the Court of Appeal for stay, that court becomes properly seized of the issue. Should this court entertain this plea, it would risk encroaching upon the appellate court's jurisdiction and invite parallel determinations on the same question.
p. 20Trial court cannot entertain parallel stay application pending before Court of Appeal
In the premises, the court finds that the application dated 9th July, 2025 is devoid of merit. The application is dismissed with costs.
p. 20Final orders - dismissal
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.
p. 14Halsbury's principles on stay of proceedings

Issues in the judgment

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minor

The ruling is dated 14th May 2026 while the motion was filed 9th July 2025 and submissions filed October 2025; the heading also labels the decision 'RULING' although described as a judgment.

minor

The jurisdictional basis stated is Order 42 Rule 6, which governs stay of execution, whereas the relief sought is stay of proceedings; the judgment nonetheless anchors the power to stay proceedings in that provision.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wachira (Suing as administrator of the Estate of Esther Nungari Kinuthia) & 2 others v Duntowobi & 2 others (Land Case E010 of 2023) [2026] KEELC 2837 (KLR)", Case Analysis (2026). ELCLC No. E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2837/eng@2026-05-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.