Busienei & 3 others v Chepkwony (Suing as the Administrator of the Estate of Elizabeth J. Sirma) & 6 others; Kamau (Interested Party)

(Being an application for stay of any further proceedings pending the hearing and determination of an appeal from the Ruling and Order of the Environment and Land Court of Kenya at Kitale (Mwangi Njoroge, J) dated 12th February 2020 in ELC Case No. 131 of 2013)) RULING 1. Before this Court is the notice of motion application dated 15th December 2025 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2022. The applicants seek an order for stay of proceedings in Environment and Land Court (ELC) Case No. 27 of 2012 (previously Kitale ELC Case No. 131 of 2013) pending the hearing and determination of this application and of Civil Appeal No. E221 of 2021. The applicants also pray for costs of the application. 2. The application is supported on grounds set out on the face of the application and augmented in the supporting adavit of Stephen Kemboi, the 3rd applicant sworn on 15th December 2025 and buttressed in his further adavit sworn on 5th July 2026. 3. The background of this application is that the applicants led Kitale ELC No. 131 of 2013 (now Eldoret ELC Case No. 27 of 2012) against the 1st, 2nd and 3rd respondents on 16th December 1998. The applicants claimed joint ownership inclusive of the 1st respondent over LR No. 11383 within Eldoret Town. Following the hearing of the suit, judgment was delivered on 18th July 2016 by E. Obaga, J. 4. Being aggrieved with the determination, the 1st respondent lodged a notice of appeal dated 28th July 2016 against the whole decision. Subsequently, two applications for stay of execution were led by the 1st and 2nd respondents which were later consolidated and dismissed vide ruling dated 7th November 2016. 5. Soon after, 14 applicants led application for joinder and setting aside of the judgment which was similarly dismissed on 7th November 2016. Thereafter, the 4th and 5th respondents sought stay of execution of the judgment and reopening of the suit, while the 6th and 7th respondents sought joinder and setting aside of the judgment. Both applications were consolidated and vide ruling dated 10th February 2020, the judgment was set aside and the 6th and 7th respondents were enjoined as interested parties. 6. The applicants were aggrieved by that determination and lodged a notice of appeal. They also served the record of appeal on the respondents. However, despite the pending appeal, the respondents had Eldoret ELC Case No. 27 of 2012 xed for mention and conrmed for hearing. This action prompted the application for stay of the proceedings presently before this Court. 7. The application is opposed by the respondents/interested parties through their respective replying adavits dated 25th and 26th June 2026 respectively. 8. On 7th July 2026 during the hearing of this application, learned counsel Oyucho appeared for the applicants, learned counsel Muhatia for the 1st and 2nd respondents, learned counsel Lubanga for 3rd and 4th interested parties and nally, learned counsel Kamau Lagat for the 1st and 2nd interested parties. The parties relied on their written submissions. 9. The applicants highlighted their written submissions on the two limbs for grant of stay of execution namely whether the appeal is arguable and if the appeal would be rendered nugatory if stay is not granted. They submitted that a critical issue for determination was whether the trial court properly https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2015/eng@2026-10-02 2

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exercised its discretion in setting aside the 2016 judgment and ordering a de novo hearing despite two similar applications having previously been dismissed; two, whether the court was functus ocio and lacked review jurisdiction once judgment had been executed; and three, whether it retained jurisdiction at all given the 1st respondent's subsisting notice of appeal. The applicants further argued that if the fresh suit proceeds to trial, the appeal will be rendered nugatory. 10. The applicants relied on the cases of Stanley Ngethe Kinyanjui vs Ketter & 5 Others; Kenya Airports Authority vs Mitu-Bell Welfare Society and Kenya Shell Limited vs Benjamin Karuga Kibiru. 11. On the inverse, the applicants urge that the respondents would suer no prejudice if a stay is granted since their proprietary interests are already reected and safeguarded in the 2016 judgment regardless of the appeal's outcome. 12. In opposition, the respondents/interested parties submitted that the applicants have not demonstrated that the intended appeal was arguable having not led a memorandum of appeal and relied on the case of Kiptum & 23 Others vs Wamoto & 5 Others to demonstrate what is sought to be stayed is reversible, since the ELC matter will simply proceed to a decision open to appeal or review. They also contended that the applicants have not demonstrated that the appeal would be rendered nugatory if an order for stay is not granted adding that no substantial loss or prejudice incapable of compensation by an appropriate order of the court would be suered. That the test is more stringent where stay of proceeding is sought since it hinges on the right of the parties of access to justice and fair hearing protected under Articles 25, 50, 159, and 165 of the Constitution of Kenya 2010. In that respect, granting a stay would halt proceedings already underway and prejudice the beneciaries and other parties awaiting determination of the estate. Consequently, they submitted that the application was premature, devoid of merit and should be dismissed with costs. 13. They urged that the twin principles are conjunctive and that a stay of proceedings is a graver remedy issued only sparingly. They anchored their reasoning on the case of Githunguri vs Jimba Credit Corporation Ltd (No. 2) and Stanley Kangethe Kinyanjui. 14. Prior to delving into the substance of this application, we must dispose of three preliminary issues raised by the respondents/interested parties. The rst is on the competence of this application noting that the 1st and the 4th applicants are both deceased and have not been substituted. It is trite law that pursuant to rule 102(1) of the Court of Appeal Rules, 2022 an appeal does not abate on the death of a party to the appeal. The rule provides for mechanisms for application for substitution with a legal representative. This position is restated in Njeru vs Frank Logistics Ltd & 9 Others [2026] KECA 955 (KLR). In view of the above, this Court cannot grant any reliefs for the benet of the two deceased applicants, without substitution. That infraction is however not fatal to this application. The 2nd and 3rd applicants who are alive and also prosecuted this application remain proper parties before this Court. As such, the application proceeds only at the instance of the 2nd and 3rd applicants. 15. Secondly, the applicants challenged the locus of the 3rd interested party to le an adavit on his own behalf and on behalf of the 4th interested party in the absence of written authority. We nd merit in that objection and accordingly discount his adavit to the extent that it only applies to the 3rd interested party. We however note that in the course of the proceedings, the 3rd and 4th interested parties shared counsel. This is corroborated on the face of their joint written submissions dated 30th June 2026 led by the rm of Mukabane & Kagunza Advocates LLP. Consequently, we see no reason to exclude the submissions led by counsel. We shall consider them as submissions on behalf of both the 3rd and 4th interested parties. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2015/eng@2026-10-02 3

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16. Thirdly, the respondents submitted that the matter is sub judice and res judicata. We hold that this Court’s jurisdiction is not ousted by the pendency of separate proceedings before the trial court. The application is therefore properly before this Court as prescribed under rule 5 (2) (b) and is ripe for determination. 17. Going to the substance of the application, this Court is bestowed with original and discretionary jurisdiction over applications brought under rule 5 (2) (b) of the Court of Appeal Rules. See Trust Bank Limited & Another vs Investech Bank Limited & 3 Others [2000] KECA 11 (KLR). It is now well settled that applications of this nature are subject to a party succeeding on two limbs; rst the appeal or intended appeal is arguable, not frivolous and secondly, if the order is refused and the appeal is successful, the results of the appeal will be rendered nugatory. We are guided by the case of Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others [2013] KECA 378 (KLR) which restates the twin principle. A court is therefore called upon to weigh the dierent facts and circumstances of each case against the two guiding principles. 18. Having considered the application, the parties’ submissions and the law, we are persuaded that the intended appeal is arguable with regard to the matters set out herein before by the applicants, including whether the trial judge properly exercised his discretion to set aside the judgment and order the matter to commence de novo when two similar applications had been dismissed by the same court. 19. On the nugatory aspect, we are guided by this Court’s test in Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others [2013] KECA 378 (KLR). The Court opined that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to proceed, is reversible or, if it is not reversible whether damages will reasonably compensate the aggrieved party. It is therefore incumbent on the applicants to demonstrate that unless the stay orders are granted the intended appeal even if successful, would be rendered nugatory. Having reviewed the material before us, we nd that the applicant’s apprehension is unfounded. The hearing of the case before the Environment and Land Court would not render the appeal nugatory since the outcome of the trial court is subject to review or appeal. 20. The grant of stay is an equitable remedy which is to be granted sparingly and only in deserving cases. We note that the present application has been visited by delay of close to ve years. The application that resulted in the order for joinder and setting aside the 2016 judgment was led in 2019 and determined in 2020. The applicants notice of appeal was received by court on 12th February 2020, yet they only lodged their application for stay in 2025. This was after the suit had already been xed for directions and yet, they have not proered a satisfactory explanation for the delay. Additionally, granting the stay would denitively lock out the interested parties from participating in the case. 21. In the circumstances, we are not persuaded that the appeal would be rendered nugatory and that the determination would be irreversible and without a remedy for compensation. The application therefore fails on this limb. 22. Consequently, we nd that the applicants have only satised one limb of the guiding principles for grant of stay under rule 5 (2) (b) of this Court’s Rules. Accordingly, the cumulative threshold having not been met, this application fails and is accordingly dismissed. Costs of this application shall be in the appeal. DATED AND DELIVERED AT ELDORET THIS 2ND DAY OF OCTOBER, 2026. M. GACHOKA, C.Arb, FCIArb. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2015/eng@2026-10-02 4

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…………………………………… JUDGE OF APPEAL NDUMA NDERI …………………………………… JUDGE OF APPEAL L. M. NDOLO …………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2015/eng@2026-10-02 5

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