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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Defendant/Applicant has satisfactorily demonstrated the conditions warranting the grant of stay of proceedings pending appeal
Key legal issues
#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)
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.
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.
Whether a trial court may grant interim stay pending the hearing of a stay application before the Court of Appeal
No - such interim relief falls within the province of the Court of Appeal once properly moved under Rule 5(2)(b).
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.
Legal principles established
#- 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
#- 1.The application dated 9th July, 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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).
Costs
The application is dismissed with costs.
Quotable passages
#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.
In the premises, the court finds that the application dated 9th July, 2025 is devoid of merit. The application is dismissed with costs.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.