Republic v Commissioner of Lands & Settlement, Director of Surveys & Chief Registrar of Titles, Ex Parte Samuru Gituto Farmers Co-operative Society Limited
The bottom line
#Kenya's Environment and Land Court refused to pause a land dispute, ruling that having an appeal does not automatically stop a case from proceeding.
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 suit should be transferred to the Thika Environment and Land Court where the suit property is situated
- 2.Whether the proceedings should be stayed or held in abeyance pending hearing and determination of Thika ELC E52B of 2023 and the intended appeal against the ruling of 18.9.2025
Key legal issues
#Whether stay of proceedings pending appeal should be granted
Stay was refused; the applicant failed to demonstrate exceptional circumstances or that the appeal would be rendered nugatory.
The court applied the Global Tours & Travels and related principles: pending appeal, explanation for not seeking stay in the Court of Appeal, arguability, nugatory effect, exceptional circumstances and timeliness. Although the applicant filed a notice of appeal and moved with speed, the court held the appeal would not be academic if the judicial review notice of motion were heard, and that the injustice would fall more on the other parties than on the applicant.
Whether the right of appeal warrants staying the trial court proceedings
The right of appeal is constitutional but does not automatically entitle a party to a stay; the hearing should follow its course with appeal thereafter.
Relying on Sakwa v Wamwanyi, the court acknowledged that a right of appeal actualises access to justice and should not be rendered nugatory. However, it held that given the history of the matter, it was preferable for the hearing to proceed and for any aggrieved party to appeal afterwards rather than impede an expedited hearing.
Legal principles established
#- Stay of proceedings is a discretionary remedy granted only in the interest of justice and in the clearest cases
- An arguable appeal need not succeed; it must merely not be frivolous and deserve the court's consideration
- The nugatory test asks whether what is to be stayed would be irreversible, worthless, futile or invalid
Court orders
#- 1.The application dated 14.10.2025 for transfer and stay of proceedings was disallowed; 'Orders accordingly.'
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 8 & 9 of the Law Reform Act Cap 26 and Order 53 of the Civil Procedure Rules
Relief refused
#Transfer of the suit to the Thika Environment and Land Court
The court found the applicant had not met the conditions for stay and the interests of justice favoured the hearing proceeding
Stay of proceedings / holding the matter in abeyance pending Thika ELC E52B of 2023 and the intended appeal
No exceptional circumstances; the appeal would not be rendered academic if the hearing proceeded
Costs
Not expressly stated in the final orders; the application had sought that costs be provided, but the ruling ends only with 'Orders accordingly.'
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.
Stay of proceedings has been termed as a discretionary remedy only granted by the court in exceptional circumstances, given its potential to infringe on a litigant’s fundamental right to a fair and prompt hearing, and access to justice.
an arguable appeal must not succeed, but which is not frivolous, and deserves the court’s consideration.
such an order is drastic in nature and should only be granted in the clearest cases.
The interests of justice tilt in disallowing the application.
Orders accordingly.
Issues in the judgment
#Affidavit date precedes the application it supports
Counsel appearances reference interested parties beyond those named
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Commissioner of Lands & Settlement, Director of Surveys & Chief Registrar of Titles, Ex Parte Samuru Gituto Farmers Co-operative Society Limited", Case Analysis (2026). ELC Judicial Review Case No. 1 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6266/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.