REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC JUDICIAL REVIEW CASE NO. 1 OF 2022 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDER OF CERTIORARI, MANDAMUS AND PROHIBITION IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT CAP 26 AND ORDER 53 OF THE CIVIL PROCEDURE RULES CAP 21 LAWS OF KENYA IN THE MATTER OF THE CO-OPERATIVE SOCIETIES ACT NO.12 OF 1997 AS AMENDED BY ACT NO. 2 OF 2004 AND NOW REVISED AS CAP 490 AND IN THE MATTER OF REGISTRATION OF TITLES ACT, CAP 281 LAWS OF KENYA IN THE MATTER OF ISSUANCE OF CERTIFIED COPIES OF DEED, PLAN OR NEW CERTIFIED DEED PLANS FOR RLR.NO. 10743 SAMURU GITUTO TO COOPERATIVE SOCIETY. REPUBLIC VERSUS COMMISSIONER OF LANDS & SETTLEMENT DIRECTOR OF SURVEYS CHIEF REGISTRAR OF TITLES RESPONDENTS COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT AND MARKETING FRANCIS NDUNGU MWAURA PETER NDUATI MBAU INTERESTED PARTIES SIMON NGURE KUNG’U EX PARTE; SAMURU GITUTO FARMERS CO-OPERATIVE SOCIETY LIMITED ELC JR 1 OF 2022 1
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RULING 1. The ruling relates to an application dated 14.10.2025. It seeks ; a) THAT the Honourable Court be pleased to transfer the instqant suit to the Thika Environment & Land Court where the suit property is situated, for further orders, directions, hearing and disposal of the suit. b) THAT the Honourbale court be pleased to order that the matter be held in abeyance or be stood over generally pending the hearing and determination fo Thika ELC E52B of 2023: Samuru Gituto Farmers’ Cooperative Society Limited Vs Chief Land Registrar & Others. c) THAT in the alternative this Honourable Court do grant such other or further orders as it shall deem fit. d) THAT costs of this suit Applcicaiton be provided. ELC JR 1 OF 2022 2
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2. The reasons are contained on the face of the application and in a supporting and supplementary affidavit sworn on 14.10.2025. 3. The grounds are that an appeal has duly been filed against the ruling of 18.9.2025 reviewing and setting aside the judgment delivered on 14.11.2023. 4. The applicant deposes that unless there is a stay of proceedings, the appeal before the Court of Appeal will be rendered nugatory if this court were to proceed to hear the initial application for judicial review, hence the substratum of the intended appeal. 5. The applicant states that it has good grounds of appeal as per the attached draft memorandum of appeal to the supplementary affidavit sworn on 13.1.2025 by Roex Michael Astan Wambugu. 6. The application is opposed by the 9 th and 10th interested parties through an affidavit sworn by Daniel Njoroge Kibiko on 13.11.2025. Stay of proceedings has been termed as a discretionary remedy only granted by the court in exceptional circumstances, given its potential to infringe ELC JR 1 OF 2022 3
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on a litigant’s fundamental right to a fair and prompt hearing, and access to justice. 7. In Re Global Tours & Travels Ltd., Nairobi Winding Up Cause No. 43 of 2000, the court said that a stay of discretionary remedy is exercised by the court, the sole question being whether it is in the interest of justice to grant the same. 8. The court said that in deciding whether or not to grant the order of stay, the court essentially looks at the pros and cons of granting or not granting the order, bearing in mind the need for expeditious disposal of cases, the prima facie merits of the intended appeal, scarcity and optimal utilization of judicial time, and whether the application has been brought timeously. 9. In Kenya Shell Ltd. Vs Benjamin Karuga Kibiru & Another (1986) KECA 94 (KLR) and in David Morton Silverstein vs Atsango Chesoni (2000) KECA 287 (KLR), Christopher Ndolo Mutuku & Another vs CFC Stanbic Limited (2015)Eklr, Kenya Power & Lighting Company Limited vs Ester Wanjiru Wokabi (2014) KEHC 3174 (KLR), Kenya Wildlife Service vs James ELC JR 1 OF 2022 4
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Mutembei ( 2019 ) eKLR the court set out the principles to consider as ; a) If there is a pending appeal. b) Explanation given why stay has not been sought, in the Court of Appeal which is better placed to calibrate its orders. c) Demonstration that the appeal raises substantial questions to be determined or is otherwise arguable. d) Demonstration that it will be rendered nugatory. e) Exceptional circumstances or sufficient cause making stay warranted as opposed to hearing the case so that all issues can arise on a single appeal. f) Expeditious filing of the applications without delay. 10. There is no dispute that the applicants, after the ruling setting aside the earlier judgment, filed a notice of appeal, sought and obtained typed proceedings and moved with speed to file the instant appeal. The applicant now says that if this court proceeds to hear the initial judicial review matter, its intended appeal is nugatory and the substratum thereof would be vitiated or rendered an academic exercise of appeal, yet it raises arguable issues. ELC JR 1 OF 2022 5
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In Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others(2013) eKLR, Civil Application No. NRB 31 of 2012, the court said an arguable appeal must not succeed, but which is not frivolous, and deserves the court’s consideration. 11. Nugatory aspect, on the other hand, depends on whether what needs to be stayed, if allowed to happen, would be irreversible, shall become worthless, futile or invalid, as was held in Reliance Bank Limited vs Norlake Investment Ltd (2002) 1 EA 227 12. A right of appeal is a constitutional right that actualises access to justice, protection and benefit of the law. In Sarah N.Sakwa vs Elizabeth Wamwanyi t/a Namukhosi Limited & Another (2017) EKL, the court held that a right of appeal encapsulates that the appeal should not be rendered nugatory by anything that impinges on the very right of appeal. 13. In Psinen Vs Seset & 2 Others ( Civil Application E021 of 2026) KECA 1035 (KLR) (29 TH May 2026), the court held that the applicant had failed to set out ELC JR 1 OF 2022 clear grounds why the court should stay 6
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proceedings at the trial court; otherwise, such an order is drastic in nature and should only be granted in the clearest cases. 14. The applicant says that if the re-hearing of the judicial review proceeds, the outcome will not be reversible or, if reversible, damages would not be an adequate remedy. 15. In other words, the applicant is saying that he will be compelled to proceed with the judicial review application. In my considered view, it would be more hygienic, given the history of the matter, for the hearing to follow its course and thereafter any aggrieved party can be at liberty to appeal. 16. Looking at the circumstances of this matter, I do not think the applicant has met the conditions and principles for grant of stay of the proceedings so that it may exercise the right of appeal. If the notice of motion is set down for hearing, it is not true that the intended appeal would be rendered academic. The injustice would be more on the parties as opposed to the applicant if the hearing were to proceed. ELC JR 1 OF 2022 7
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17. There are no exceptional circumstances why an expedited hearing of the notice of motion should be impeded. 18. The interests of justice tilt in disallowing the application. 19. Orders accordingly. DATED, SIGNED AND DELIVERED ON THIS 30TH DAY OF SEPTEMBER, 2026 AT MILIMANI – NAIROBI. …………………… HON JUSTICE C.K NZILI JUDGE In the presence of ; Chebet for Muriuki for Applicant Waiyego for Mbiyu Kamau for 12th & 60th interested parties Mr. Githiomi for 61st interested party Mr. Mutugi for 9th & 10th interested parties Mr. Kathingiu for Magee for applicant Mr. Muigai for Mr. Oyugi for 4th -8th interested parties Miss Njeri Kiarie for Ndungu Mwaura for 12 th interested party ELC JR 1 OF 2022 8
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Court assistant: Julius ELC JR 1 OF 2022 9
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