Mutisya (Suing on Behalf of 179 others) v Base Titanium Kenya Limited (Environment and Land Case E063 of 2024) [2026] KEELC 263 (KLR)

3. The application was premised on the grounds, testimonial facts and averments made out by a fortysix (46) Paragraphed Supporting Afidavit sworn by the Dr. Melba Kapesa Wasunna, dated 15th April 2025 together with one bundle annexure marked as “MKW - 1”. The Deponent averred as follows that: a. She was employed by the Defendant as its General Manager – External Afiairs. b. She had held the position of General Manager – External Afiairs since January 2025, and prior thereto. From the year 2018, she served as Manager – External Afiairs with the Defendant. c. Her role entailed, inter alia, oversight of the Defendant’s community and government relations activities, including land access processes undertaken by the Defendant in the course of its business operations. d. She was familiar with the facts of this suit and with the Ruling delivered on 3rd April 2025 by Hon. Justice L. L. Naikuni of ELC, Kwale (Hereinafter referred to as “The Ruling”). e. She swore the afidavit in support of the Defendant’s application seeking a stay of proceedings pending the hearing and determination of the Defendant’s proposed appeal from the Ruling (Hereinafter referred to as “the Application”). f. She had the Defendant’s authority to swear the afidavit on its behalf. g. She was aware that by the Ruling, the Learned Judge: h. i. Dismissed the Defendant’s Preliminary Objection dated 31st January 2025, by which the Defendant had challenged the Court’s jurisdiction; ii. Dismissed the Defendant’s Notice of Motion dated 6th December 2024 seeking to strike out the Plaint; and iii. Granted the Plaintifis’ Notice of Motion dated 30th September 2024 for injunctive relief (“the Injunction Application”). She was further aware that the temporary injunction granted pursuant to the Ruling was in the following terms: “ Pending hearing and determination of this suit, a temporary injunction is hereby issued against the Defendants [sic] restraining it whether by themselves, their agents or any other persons claiming through it from trespassing, mining and or dealing whatsoever with ALL THAT unregistered land situate in NgulukuMaumba measuring 4000 acres or thereabout hereinafter ‘the suit property’.” i. The Defendant was aggrieved by the Ruling and intends to lodge an appeal to the Court of Appeal. j. Annexed at pages 1 to 2 of exhibit “MKW - 1” were copies of the Defendant’s Notice of Appeal and Request for Proceedings filed on 10th April 2025. k. The detailed grounds upon which the Defendant sought to challenge the Ruling were set out in the draft Memorandum of Appeal annexed at pages 3 to 5 of exhibit “MKW - 1”. l. The headings used in the afidavit were included for ease of reference and were not intended to afiect the interpretation or substance of the afidavit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 2

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m. The Defendant was aggrieved that in dismissing the Preliminary Objection, the Learned Judge held that the Court had jurisdiction to hear and determine the suit, notwithstanding the express provisions of Sections 152, 153 and 154 of the Mining Act, 2016 (“the Mining Act”), which oust such jurisdiction. n. She was informed by Terry Mwango, a Partner at Coulson Harney LLP, Advocates for the Defendant, and verily believed it to be true, that the jurisdictional challenge under the Mining Act goes to the heart of the Court’s competence to entertain the suit. o. She was further informed by the said Advocate, and verily believed it to be true, that should the Court of Appeal uphold the Defendant’s jurisdictional challenge, the Plaintifis’ suit would be terminated in its entirety. p. She noted from the Ruling that the Learned Judge had already fixed the matter for mention on 25th June 2025 for case management and hearing on 29th October 2025. q. The Defendant was therefore apprehensive that in the absence of a stay, it would be compelled to participate in proceedings that would prejudice both its jurisdictional challenge and the substance of the intended appeal. r. Apart from the jurisdictional issue, the Defendant was aggrieved by the Learned Judge’s finding that the suit property was ascertainable despite:i. The Plaintifis’ admission, in the 1st Plaintifi’s Replying Afidavit sworn on 7th February 2025, that they had provided confiicting descriptions and measurements of the alleged property; and ii. The description of the land in both the Plaint and the Injunction Application being vague and inconsistent with the provision of Order 4 Rule 3 of the Civil Procedure Rules, 2010 thereby rendering the property unascertainable. s. The Defendant was further aggrieved by the Learned Judge’s finding that the Plaintifis had properly authorised the 1st Plaintifi to institute the suit, despite the absence of a verifying afidavit accompanying the Plaint dated 30th September 2024. t. The Defendant also challenged the Learned Judge’s reliance on an unverified list of names and signatures annexed as exhibit “GMM - 1” to the Supporting Afidavit sworn by Gideon Mutisya Masyuki on 30th September 2024, as proof of authority. u. The said list contained no identifying particulars such as national identity card numbers or addresses by which the identities of the alleged 179 Plaintifis could be verified. v. She was informed by Terry Mwango, and verily believed it to be true, that the Plaintifis’ suit failed to meet the strict legal threshold for a representative suit under the Civil Procedure Rules. w. The Defendant was further aggrieved by the Learned Judge’s decision to grant an injunction notwithstanding the Plaintifis’ failure to meet the legal threshold for such relief. x. The Learned Judge granted the injunction on the basis that the Plaintifis had produced title deeds evidencing ownership, occupation and use of the suit property, yet no such title documents were before the Court. y. A review of paragraph 3 of the Supporting Afidavit and exhibit “GMM - 2” reveals that no title deed proving ownership of the alleged suit property was annexed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 3

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z. The only title documents annexed under exhibit “GMM - 2” were two title deeds in the names of Muthama Muindi Ndaka and Stella Mutisya Makula, copies of which appear at pages 6 and 7 of exhibit “MKW - 1”. aa. She was informed by Terry Mwango, and verily believed it to be true, that these two title deeds could not establish ownership on behalf of the alleged 179 Plaintifis, rendering the Learned Judge’s finding a manifest error of law and fact. ab. Further, the combined acreage of the two title deeds was approximately 4.416 hectares, which was inconsistent with the Plaintifis’ claim to approximately 4,000 acres, or even 100 acres. ac. The Defendant was also aggrieved that the Learned Judge failed to consider the Plaintifis’ admission that the Defendant was on the land pursuant to a valid Special Mining Lease (SML). ad. She was aware that the SML was issued by the Government of Kenya, as the lawful owner of the land, pursuant to the provision of Section 55 of the repealed Mining Act, now replaced by the Mining Act, 2016. ae. Accordingly, the injunction was inconsistent with the applicable legal framework governing land ownership and mining rights in Kenya. af. Without prejudice to the foregoing, she noted that the area described in the two title deeds as being within the Mrima Bwiti Scheme never fell within the area of the Defendant’s SML. ag. Annexed at page 8 of exhibit “MKW - 1” was a map demonstrating that the Bwiti Dispensary, used as a reference point, was located approximately 9.1 kilometres from the nearest boundary of the “SML”. ah. Consequently, the properties refiected in the two title deeds never overlapped with the Defendant’s SML area at all. ai. The Defendant was further aggrieved by the Learned Judge’s finding that the Defendant was undertaking mining activities, which was factually incorrect. aj. In late 2023, the Defendant resolved to cease mining operations in Kenya following depletion of relevant ore reserves. ak. By a letter dated 8th November 2023, the Defendant formally notified the authorities of the closure of its mining operations. A copy of the letter appears at pages 9 to 14 of exhibit “MKW - 1”. al. No mining operations had been conducted by the Defendant under the SML since late December 2024. am. She verily believed that the Ruling contained numerous errors of law and fact, making it prejudicial for the suit to proceed prior to determination of the intended appeal. an. She was advised by Terry Mwango, which advice she believed to be sound, that the intended appeal was arguable, meritorious and raises serious points of law. ao. She was further informed, and verily believed, that the Defendant has satisfied the legal test for the grant of a stay of proceedings. ap. The Application was filed without unreasonable delay, the Ruling having been delivered on 3rd April 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 4

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aq. She believed that the issues raised on appeal were substantial and deserving of consideration by the Court of Appeal. ar. She was advised, and verily believed, that it is fair, just and in the interests of justice that a stay of proceedings be granted to allow the Defendant to prosecute its appeal, which is unlikely to be heard before the suit is determined. The exhibit marked as “MKW - 1” was produced. as. Save where otherwise stated, the afidavit was made to the best of her knowledge, information and belief, including information derived from the Defendant’s records. III. The Replying Afidavit by the Plaintifi/Respondent 4. 5. On 21st May 2025, the application was opposed through a filing of a Grounds of Opposition. The Plaintifis opposed the application dated the 15th April 2025 on the grounds that: a. The application dated the 15th April 2025 was a clear abuse of the court process and consequently should be dismissed with costs. b. The application fails to satisfy the legal threshold as contemplated in law and thus fit for dismissal. c. The application was tantamount to the court sitting on its own appeal and thus an abuse of court process. d. The application was made in bad faith and thus should be dismissed with costs. The Plaintifi further filed a ten (10) Paragraphed Replying Afidavit sworn by Gideon Masyuki, dated 24th May, 2025. The Deponent averred as follows that: a. He was the 1st Petitioner in the matter and is duly authorised to plead and swear the afidavit on behalf of the other Petitioners. b. In response to paragraphs 2, 3 and 4 of the Supporting Afidavit, he averred that the Defendant’s application lacked merit and urged the Court to dismiss it with costs. c. In reply to the contents of Paragraphs 5, 6, 7, 8, 9 and 10 of the Supporting Afidavit, he averred that upon considering the Plaintifis’ application and its merits, the Honourable Court granted the application in terms of prayer 3, and duly issued an injunction pending the hearing and determination of the suit. d. In response to the contents of paragraphs 11, 12, 13, 14 and 15 of the Supporting Afidavit, he averred that the Court had already fully addressed the issue of jurisdiction and rendered a sound ruling confirming that it is properly clothed with jurisdiction to hear and determine the suit. e. He further averred that inviting the Court to stay the proceedings on the basis of alleged lack of jurisdiction would amount to the Court sitting on appeal over its own decision, which was impermissible in law. f. In reply to the contents of Paragraphs 16, 17, 18, 19 and 20 of the Supporting Afidavit, he averred that the suit before the Court was a proper representative suit, as rightly observed by the Court, and that the intended appeal before the Court of Appeal therefore had no basis in law. g. In response to the contents of Paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 40 of the Supporting Afidavit, he averred that the Defendant/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 5

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was improperly challenging the Honourable Court’s Ruling through the present application, which approach was unprocedural and contrary to the Constitution and the law. h. He further averred that the Defendant/Applicant was introducing new evidence that had not been placed before the Court during the hearing of the earlier application, thereby rendering the present application prejudicial and an abuse of the court process. i. In response to the contents of Paragraphs 40, 41, 42 and 43 of the Supporting Afidavit, he stated that he was informed by his Advocates on record, which advice he verily believed to be true, that the application dated 15th April 2025 failed to satisfy the applicable legal threshold for the grant of stay, and he urged the Court to dismiss the same with costs. j. He concluded by averring that all matters deponed to were true and correct to the best of his knowledge, information and belief. IV. Submissions 6. On 20th June, 2025, while all parties were present in Court, directions were provided by the Honorable Court to have the Notice of Motion application dated 15th Apri, 2025 be disposed ofi by way of written submissions with stringent timelines. 7. Pursuant to that, the Plaintifi/Respondent and the Defendant/Applicant fully complied with the directions. The Honorable Court reserved a date for delivery of the ruling accordingly. A. The Written Submission by the Defendant/Applicant. 8. On 4th July 2025, the Learned Counsel for the Defendant/Applicant, the law firm of Messrs. Coulson Harney LLP, filed their written submissions dated the same day. It was in support of the Defendant’s Notice of Motion dated 15th April 2025. M/s. Mwango Advocate commenced by submitting that the gravamen of the application was the Defendant’s prayer for stay of proceedings pending the hearing and determination of its intended appeal against the ruling of this Court delivered on 3rd April 2025. 9. The Learned Counsel gave a brief background of the matter at hand. She submitted that by the impugned ruling, this Court allowed the Plaintifis’ Injunction Application dated 30th September 2024, dismissed the Defendant’s application to strike out the Plaint dated 6th December 2024, and dismissed the Defendant’s Preliminary Objection dated 31st January 2025 which challenged the Court’s jurisdiction. Being aggrieved, the Defendant filed a Notice of Appeal on 10th April 2025 and subsequently brought the present application to preserve its right of appeal. 10. The Learned Counsel averred that this Court has jurisdiction to grant stay of proceedings under Order 42 Rule 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, and that the applicable principles are whether the intended appeal is arguable, whether the application was filed expeditiously, and whether it is in the interests of justice to grant a stay. In support of the application, reliance was placed on, inter alia, the cases of:- “Millicent Wamaitha Njogu – Versus Pauline Nyambura Waweru [2022] eKLR and M/S Karsan Ramji & Sons Limited – Versus - Athumani & Another [2024] eKLR”. 11. Addressing the Plaintifis’ contention that the application amounted to the Court sitting on its own appeal, the Counsel averred that such an argument was misconceived, as both the trial court and the Court of Appeal had concurrent jurisdiction to entertain applications for stay of proceedings pending appeal. In support of this position, the Counsel cited the case of:- “Majon – Versus - Masibo & 8 Others [2025] eKLR”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 6

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12. On whether the Defendant had established a prima facie arguable appeal, the Counsel submitted that an arguable appeal need only raise a single triable issue and need not necessarily succeed. Reliance was placed in the case of:- “Mrao Limited – Versus - First American Bank of Kenya Ltd & 2 Others [2003] eKLR and Kenya Power & Lighting Company Limited – Versus - Esther Wanjiku Wokabi [2014] eKLR. The Counsel argued that the intended appeal raised serious jurisdictional issues under the provision of Sections 152, 153 and 154 of the Mining Act, 2016, which on their own constituted arguable grounds capable of disposing of the entire suit if upheld, as held in “Areva T & D India Limited – Versus - Priority Electrical Engineers Limited & Another [2009] eKLR”. 13. The Counsel further submitted that the intended appeal raised substantial procedural and substantive errors, including findings that the suit property was ascertainable despite vague and inconsistent descriptions, that a representative suit had been properly instituted without a verifying afidavit. Further, that an unverified list of names suficed as authority, and that the Plaintifis had proved ownership and ongoing mining activities when no such evidence was before the Court. It was the contention by the Counsel that these errors went to the root of the Defendant’s right to a fair hearing, citing the case of:- “Watu Credit – Versus - Geofirey Mokaya Aboki & Another [2022] eKLR”. 14. On the issue of delay, the Counsel submitted that the application was filed timeously. It was barely twelve (12) days after delivery of the ruling and five (5) days after the Notice of Appeal was lodged. Therefore, the Applicant satisfied the requirement that an application for stay be brought expeditiously. 15. With regard to the interests of justice, the Counsel held that unless a stay of proceedings was granted, the intended appeal would be rendered nugatory. The Learned Counsel relied on the cases of:- “Port Florence Community Health Care – Versus - Crown Health Care Limited [2022] eKLR and Joel Kiprono Mutai – Versus - County Government of Kericho & Another [2019] eKLR”, arguing that proceeding with the hearing while a jurisdictional appeal was pending would prejudice the Defendant, undermine the appellate process, and risk wastage of judicial time and resources. 16. The Learned Counsel argued that granting a stay would not prejudice the Plaintifis but would instead preserve the status quo, safeguard the integrity of the appellate process, prevent the Defendant from incurring unnecessary costs, and ensure judicial economy, particularly in the event the Court of Appeal were to uphold the Preliminary Objection and terminate the suit. 17. In conclusion, the Counsel urged the Court to find that the Defendant had satisfied all the legal requirements for the grant of a stay of proceedings and to allow the Notice of Motion application dated 15th April 2025 in its entirety, in the interests of justice. B. The Written Submissions by the Plaintifis/Respondents 18. On an unspecified date in 2025, the Learned Counsel for the Plaintifis/Respondents, Messrs. J. Kiseu Advocates, filed their written submissions opposing the Defendant’s Notice of Motion application dated 15th April 2025. Mr. Kiseu Advocate submitted at the outset that the Defendant’s application for stay of proceedings was unmerited and ought to be dismissed with costs. 19. The Learned Counsel set out the applicable legal principles governing stay of proceedings, relying on the decision of “Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000), where the Court held that the grant of stay is discretionary and must be exercised in the interests of justice after weighing factors such as the need for expeditious disposal of cases, the arguability of the intended appeal, optimal utilization of judicial time, and whether the application was brought expeditiously. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 7

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20. On the first issue of expeditious disposal of cases. The Learned Counsel submitted that the suit which was filed in the year 2024, already been fixed for hearing on 29th October 2025. Further, it involved substantial interests. The Counsel argued that the Defendant’s application was intended to delay the hearing of the matter without justification, contrary to the established principles on stay of proceedings, and should therefore be dismissed. 21. On whether the intended appeal was arguable. The Counsel submitted that the Defendant had only filed a Notice of Appeal and not an actual appeal. This rendered the application frivolous and incapable of meeting the threshold for grant of stay. It was the Counsel’s contention that the Court could not grant stay on the basis of a Draft Memorandum of Appeal, but only where a substantive appeal had been filed. 22. Without prejudice to the foregoing, the Counsel argued that even the grounds raised in the Draft Memorandum of Appeal were not arguable, as they had already been canvassed and conclusively determined by this Court in the impugned ruling. The Counsel argued that the Defendant was merely re - litigating issues that had been dismissed. 23. On the issue of jurisdiction. Under the provision of Sections 153, 154 and 155 of the Mining Act, 2016, the Counsel averred that the said provisions never ousted the jurisdiction of this Court and that this position had been afirmed in several decisions, including the impugned ruling, thereby rendering the jurisdictional challenge untenable. 24. The Counsel further submitted that the suit was properly instituted as a representative suit. In saying this, the Counsel held that the Plaintifis had filed the requisite authority to act, and that the Court was correct in finding that the suit was properly before it. 25. On the contention that the Plaint did not suficiently describe the suit property. The Counsel submitted that the Court correctly found that the description met the requirements of Order 4 Rule 3 of the Civil Procedure Rules, especially when considered alongside the overriding objectives of the Civil Procedure Act, Cap. 21. 26. With respect to the grant of the temporary injunction. The Counsel submitted that the Court rightly found that the Plaintifis had established a prima facie case, having produced Certificates of Title as evidence of ownership and occupation, and demonstrated acts by the Defendant that were adverse to the Plaintifis’ proprietary rights, including acts amounting to eviction without compensation. 27. Therefore, the Counsel submitted that the intended appeal disclosed no prima facie arguable issues, had no chances of success, and that the interests of justice would best be served by allowing the suit to proceed to hearing without delay. 28. In conclusion, the Counsel urged the Court to find that the Defendant’s Notice of Motion application dated 15th April 2025 lacked merit. The Honourable Court should dismiss it with costs to the Plaintifis. V. Analysis And Determination 29. The court has considered the said Notice of Motion application dated 15th April 2025 by the Defendant/Applicant herein, the attached annexures thereof and the elaborate written Submissions, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and statutes in support and opposition of the Application. 30. The following three (3) issues fell within the domain of the subject matter and shall be the guide of Court in arriving at an informed, just and fair determination. These are:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 8

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a. Whether the Notice of Motion application dated 15th April, 2025 by the Defendant/Applicant has merit. b. Whether the parties herein are entitled to the reliefs sought. c. Who will bear the costs of the application? ISSUE No. a). Whether the Notice of Motion application dated 15th April, 2025 by the Defendant/ Applicant has merit. 31. Under this Sub – heading the Honourable Court will be deciphering the merits of the application. The gravamen of the Defendant/Applicant’s application was a prayer for stay of proceedings pending the hearing and determination of its intended appeal against the Ruling of this Honourable Court delivered on 3rd April 2025. The Defendant/Applicant contends that unless the proceedings herein are stayed, the intended appeal will be rendered nugatory, particularly given that the appeal raises, “inter alia”, a jurisdictional challenge. 32. Legally speaking, the power of this Court to grant an order for stay of proceedings pending appeal is not in dispute. Such jurisdiction is derived from the provision of Section 6 of the Civil Procedure Act, Cap. 21, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 1, 1A, 3 and 3A of the Civil Procedure Act, Cap. 21. Further, it is anchored in this Court’s inherent jurisdiction to make such orders as may be necessary for the ends of justice. 33. The principles that guide a court in determining whether to grant a stay of proceedings are now well settled. Unlike stay of execution, stay of proceedings is a more drastic remedy and must be exercised sparingly and judiciously. The Court must weigh competing interests and determine whether it is in the interests of justice to halt the proceedings. 34. In the case of “Global Tours & Travels Limited (Supra)”, the Court held as follows:“ 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.” 35. Additionally, the Court then distilled the following three main principles to guide a Court in such applications: a. Whether the Applicant has established that he/she has a prima facie arguable case. b. Whether the application was filed expeditiously and c. Whether the Applicant has established suficient cause to the satisfaction of the Court that it is in the interest of justice to grant the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 9

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36. In the case of:- ”Christopher Ndolo Mutuku & Another - Versus - CFC Stanbic Bank Limited (2015) eKLR”, the Court observed that:“ …….what matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…” 37. Similarly, in the case of:- ”Christopher Ndolo Mutuku (Supra)”, the Court held as follows:“ What matters in an application for stay of proceedings pending appeal is the overall impression the court makes out of the total sum of the circumstances of each which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice.” 38. Furthermore, in the case of:- “Pius Kawinzi Kithoka – Versus - Jacinter Kavindu Makau, the Court made the following observation: “ The Applicant has given no explanation at all for this delay. In my view, it shows lack of seriousness in pursuing the appeal at worst, and at best a vexing tardiness which disentitles him from the Court’s discretion. Equity does not aid the indolent” 39. The Halsbury’s Law of England 4th Edition Vol. 37 pages 330 and 332 states 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 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 Plaintifi 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.” 40. It is therefore clear that in determining whether or not to grant an order for stay of proceedings, the Court must bear in mind the general rule that once a suit is filed, proceedings ought to continue without interruption until the suit is determined. This is premised on the right of every person to a fair trial which includes the right to have the trial begin and conclude without unreasonable delay as enshrined in Article 50 (2) (e) of the Constitution as well as the principle that justice delayed is justice denied, being a cardinal principle that guides Courts in the exercise of judicial authority. 41. Thus, I discern that, it is against this background that orders for stay of proceedings ought to be sparingly granted and only in exceptional circumstances that demonstrate that there are compelling reasons and it would go against all that is deemed just and fair to proceed with the suit. The threshold for such proof is beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 10

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ISSUE No. b). Whether the parties herein are entitled to the reliefs sought from the filed application Whether the intended appeal is arguable 42. The Defendant/Applicant contended that its intended appeal raises serious and arguable issues. Principally, these were on the question of jurisdiction under Sections 152, 153 and 154 of the Mining Act, 2016, as well as alleged procedural and substantive errors in the impugned Ruling. 43. The Plaintifis/Respondents, on the other hand, submitted that the Defendant had merely filed a Notice of Appeal and not a substantive appeal, and that the grounds set out in the draft Memorandum of Appeal raise no arguable issues, having already been fully considered and determined by this Court. 44. This Court is alive to the principle that an arguable appeal is not one that must necessarily succeed, but one that raises a bona fide triable issue. However, an arguable appeal must be more than a mere disagreement with the findings of the Court. 45. Upon careful consideration of the draft Memorandum of Appeal, this Court finds that the Defendant/ Applicant is essentially inviting the Appellate court to re - evaluate matters that were exhaustively canvassed and conclusively determined in the Ruling of this Honourable Court on 3rd April 2025. The jurisdictional question under the Mining Act, 2016, the propriety of the representative suit, the description of the suit property, and the grant of the interlocutory injunction were all directly addressed and resolved by this Court. 46. Notably, the Defendant/Applicant has not demonstrated any novel point of law or exceptional circumstance warranting the halting of proceedings. The mere fact that a party is dissatisfied with a court’s determination does not, of itself, render the intended appeal arguable for purposes of stay of proceedings. 47. Further, the Defendant/Applicant has not filed a substantive appeal but relies solely on a Notice of Appeal and a draft Memorandum of Appeal which I concur with the Counsel for the Plaintifi/ Respondents can form a basis of substantive appeal. While this is not fatal per se, it is a relevant consideration in determining whether the threshold for stay of proceedings has been met, particularly where no exceptional circumstances have been demonstrated. 48. In the circumstances, this Court is not persuaded that the intended appeal raises arguable issues suficient to justify the drastic remedy of stay of proceedings. On that front, therefore, the application must fail. Whether the application was filed expeditiously 49. The Court notes that the application was filed shortly after delivery of the impugned Ruling. This limb is therefore satisfied. 50. However, timeliness alone, without satisfaction of the other substantive requirements, is insuficient to warrant the grant of a stay of proceedings. Whether the interests of justice favour the grant of a stay of proceedings 51. The Defendant/Applicant submitted that unless proceedings are stayed, the intended appeal would be rendered nugatory. The Plaintifis countered that granting a stay would unjustifiably delay the resolution of a matter filed in the year 2024 and already fixed for hearing on 29th October 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 11

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52. This Court has weighed the competing interests of the parties. The Plaintifis/Respondents have an undoubted right to expeditious disposal of their case and on fair hearing, a principle firmly anchored under Articles 25 ( c ), 50 ( 1 ) & ( 2 ) & 159 (2) (b) of the Constitution of Kenya, 2010. 53. On the contrary, the Defendant/Applicant has not demonstrated how proceeding with the hearing of the suit would irreparably prejudice its right of appeal. The law is settled that the continuation of proceedings does not, in itself, render an appeal nugatory, particularly where the appellate court retains the power to set aside any orders made if the appeal ultimately succeeds. 54. Further, the Defendant/Applicant’s contention that this Court would be sitting on its own appeal if proceedings continue is misconceived. The Court has already pronounced itself on the issues raised, and the appropriate forum for challenging that decision is the Court of Appeal, not through interlocutory applications that seek to stall proceedings before this Court. 55. Granting a stay in the circumstances of this case would undermine the principle of eficient and timely administration of justice and would amount to an unwarranted interruption of the Court’s processes. Therefore, this Court is satisfied that the interests of justice do not favour the grant of a stay of proceedings. 56. In light of the foregoing analysis, this Court finds that the Defendant/Applicant has failed to satisfy the legal threshold for the grant of a stay of proceedings pending appeal. 57. Accordingly, the Notice of Motion application dated 15th April 2025 is devoid of merit and hence cannot succeed. Issue No. c). Who will bear the Costs of the application 58. It is trite law that the issue of Costs is at the discretion of the Court. Costs means any award granted to a party at the conclusion of any legal action, process or proceedings in a litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By events, it means the results or outcome of any legal action, process or proceedings in any litigation. 59. In the instant case, the Honorable Court finds that the Defendant/Applicant have not been successful in prosecuting their Notice of Motion application dated 15th April 2025. Nonetheless, since the matter has not yet commenced, heard and finally determined I direct that the Costs to be in the cause accordingly. V. Conclusion & Disposition 60. Having conduct an in-depth analysis of all the framed issues herein, on preponderance of probability, this Honorable Court finds that the Defendant/Applicant herein have not been able to established some suficient cause to the satisfaction of the Court that it is in the interest of justice not to grant the orders sought. Specifically, the Honourable Court proceeds to grant the following orders: a. That the Notice of Motion application dated 15th April, 2025 by the Defendant/Applicant be and is hereby found to lack merit and hence is disallowed entirely. b. That for expeditious sake this matter be mentioned on 24th June, 2026 for purposes of conducting a Pre – Trial Conference and on case management pursusnt to the provision of Order 11 of the Civil Procedure Rules, 2010. That there be a full hearing of the matter on 24th September, 2026 through Physical means. c. That the costs of this application to be in the cause. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 12

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It is so ordered accordingly. RULING DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 27th DAY OF JANUARY 2026. ………………………………………….. HON. MR. JUSTICE L. L. NAIKUNI ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: Mr. Daniel Disii, the Court Assistant. Mr. Kiseu Advocate for the Plaintifis/Respondents. M/s. Mwango for the Defendant/Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/263/eng@2026-01-27 13

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