Rono (As Legal Representative of Monica Jepwambok Ronoh) v Kipkosgei & 5 others

d. Any other order that the Honourable Court may deem t to grant. 2. The 1st Respondent through Kipkosgei Choge & Company Advocates opposed the application by their grounds of opposition dated 15th April 2026. He stated in part, that the subject matter of Appeal was not on costs to the Respondents; save to say that it was about status quo that was dened by the Consent to mean that the 1st Respondent was in occupation of the suit land. That there is no order of stay of assessment of the Respondent’s bill of costs. 3. The 2nd Respondent through Mwinamo Lugonzo and Company Advocates led their Replying Adavit sworn on the 9th day of April 2026 and averred, inter alia i. From the foregoing, what was dealt with was the status quo obtaining on the subject matter which is the suit land. ii. At no time did the court make any orders or directions in regard to the issue of costs. iii. It is trite law that costs follow the event and it follows that upon the dismissal of the plainti’s suit, costs ought to be paid by the Plainti who dragged the Defendants to Court. 4. The application was heard by written submissions pursuant to Order 51 Rule 16 of the Civil Procedure Rules 2010. 5. By the submissions dated 5th August 2026, learned counsel for the applicant/plainti stated that in the circumstances it would be premature, prejudicial, and liable to render the intended appeal nugatory or academic for the Bill of Costs to be taxed and a Certicate of Costs to crystallize ahead of the determination of the appeal challenging the very decision from which the Respondents' entitlement to costs ows. That if the Applicant succeeds in the intended appeal, the Judgment of 27th January 2025 dismissing her suit, from which the Defendants-Respondents' entitlement to costs ows in the rst place, may be set aside or varied, which would necessarily aect, or extinguish altogether, the 1st and 2nd Respondents' entitlement to the costs now sought to be taxed. that to allow the Bill of Costs to be taxed to nality and a Certicate of Costs to issue before the appeal is heard would risk exposing the Applicant to execution for sums that may never have been properly due, and would render the appeal, at least in part, nugatory. 6. To buttress the submissions, counsel relied on the case of Nairobi City Council v Tom Ojienda & Associates, Civil Appeal (Application) No. E080 of 2022; [2022] KECA 1326 (KLR) (Ruling of 2nd December 2022) and on Christopher Ndolo Mutuku & another v CFC Stanbic Bank Ltd [2015] eKLR on the requirements to be considered in an application for stay orders pending the hearing and determination of an appeal. 7. The 1st Respondent’s counsel led submissions dated 10th September 2026 in which reliance was made on Order 42 Rule 6 of the Civil Procedure Rules, 2010 that there was no proof that the Applicant was not served with the Application and that there was no order of stay from the Court of Appeal. That there is no decree on costs and or a certicate of costs thereof hence, there is nothing to be stayed as envisaged by the Rules. 8. By relying on the case of Waweru –vs- Bor & Another (2024) KEHC on the principles guiding stay of proceedings, counsel submitted that stay of proceedings is a radical measure which is only exercised in the most deserving cases. That the Applicant failed to meet any of the conditions set out in the various cases they relied on and cited Mwatha vs Karanja {2023} KEHC 6146 (KLR) to reinforce the submissions. Essentially, they sought for the Application to be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5880/eng@2026-09-22 2

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9. In the foregone, has the Applicant has met the threshold for the grant of stay orders sought in the Application by this court? 10. By the judgment rendered on 27th January 2025, this court dismissed the Plainti’s case and awarded costs of the suit to the Defendants. Subsequently, the Plainti lodged an application namely Court of Appeal Civil Application No. E011 OF 2025 which was compromised by the parties through a consent in which thy agreed as follows: a. The current status quo currently obtaining on the ground be maintained and the same was to the eect that the 1st Defendant is the one currently residing on the land. b. The 1st Defendant will not transfer the title pending the hearing and determination of the appeal. c. There will be no order as to costs. 11. Subsequent to the above consent ruling, the Respondents herein led their Bill of Costs in the original suit and the same was set for ruling on 15th April 2026 hence precipitating the application. The Applicant herein decried the fact that they were never served with the Bill of Costs in order to enable them to respond. This assertion was countered by the 1st Respondent who indicated that there was no evidence to show that the Applicant was not served. 12. The Respondent also raised a question whether this Court is the best court in which such an application should have been led, noting that the appeal has already been instituted and pending at the Court of Appeal. It is noted that in the application led before the Court of Appeal under Application No. E011/2025, the Applicant therein conspicuously failed to seek for an order of stay of execution. In the said Application, the Applicant entered a consent, limiting the nature of the status quo orders given to mean that the 1st Defendant was the one to remain in occupation of the land. 13. This Court has considered the requirements for stay of proceedings as laid out in long range of authorities inclusive of Waweru and Ndolo cases (supra) as follows: 14. i. There must be an appeal pending before the higher court; ii. Where such stay is sought before the court hearing the case as opposed to the higher court to which the Appeal has been led and there is no express provision of the law allowing for such application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being led in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly. iii. The Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable. iv. The Applicant must demonstrate that the appeal would be rendered nugatory if the stay of proceedings is not granted. v. The Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal. Notably, the only issue that seeks to be stayed by the Applicant is the assessment of costs. This Court is of the view that that the status quo order that was given by the consent ruling at the Court of Appeal, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5880/eng@2026-09-22 3

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operates to preserve the subject matter of the appeal. The said order was intentionally limited by the parties to mean that the 1st Defendant was the one to occupy the property, pending the hearing and determination of the Appeal. 15. It is established law that a court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law; see Samuel Kamau Macharia and another vs Kenya Commercial Bank & 2 others [2012] KESC 8 (KLR) at page 68. 16. Similarly, in the case of Republic-vs-Karisa Chengo & 2 others {2017} KESC 15 (KLR), the Supreme Court of the Republic of Kenya held; ‘…..Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) {1962} AC 152 succinctly makes this point…..’ 17. Clearly, the applicant led Civil Application No. E011 OF 2025 at the Court of Appeal. The parties consented before that Court, among other things, t1st Defendant will not transfer the title pending the hearing and determination of the appeal as stated in paragraph 10 hereinabove. 18. In that regard, it would not be fair for the instant application and the Civil Application No. E011 of 2025 before the Court Appeal to be heard simultaneously; see Judicial Commission of Inquiry into the Goldenberg Aair & others vs Job KIlachi {2003} KECA 155 (KLR). 19. It is therefore, my considered view that this Honourable Court is devoid of jurisdiction over the instant application as the Court of Appeal is seized of the matter. 20. Thus, the application dated March 2026 be and is hereby struck out with no orders as to costs. 21. It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 22ND DAY OF SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Ms. Chawyah Jean instructed by Ochieng learned counsel for the applicant/plainti 2. Mr. Delmas Mwinamo learned counsel for the 2nd Defendant/Respondent 3. Walter and Emma, Court Assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5880/eng@2026-09-22 4

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