Gathungu (Suing as the Personal Representative of the Estate of Newton Gathungu Kibuchi) v Embakasi Ranching Company Limited & 3 others (Civil Appeal (Application) E689 of 2025) [2025] KECA 2321 (KLR) (19 December 2025) (Ruling)
Neutral citation:
[2025] KECA 2321 (KLR)
Republic of Kenya
Civil Appeal (Application) E689 of 2025
DK Musinga, JM Ngugi & GV Odunga, JJA
December 19, 2025
Between
George Kibuchi Gathungu (Suing as the Personal Representative of the Estate of Newton Gathungu Kibuchi)
Applicant
and
Embakasi Ranching Company Limited
1st Respondent
Barnabas Muturi C Mwangi
2nd Respondent
Purity Karuri Mwaniki
3rd Respondent
Stephen Mwaniki Macharia
4th Respondent
(Being an application for stay of proceedings pending the hearing and determination of the appeal against the ruling and order of the Environment and Land Court at Nairobi (A. Omollo, J.) dated on 30th April 2025 in ELC Case No. 2 of 2022)
Ruling
1.Before the Court is the applicant’s Notice of Motion dated 19th September, 2025 seeking orders that pending the hearing and determination of the appeal, this Court be pleased to issue an order staying all and further proceedings in Milimani ELC Case No. 2 of 2022.
2.A brief synopsis of the case is that vide the Notice of Motion dated 15th October 2024, the applicant sought, from the Environment and Land Court, leave to file additional documents, being computation files and authentication slips from the Survey of Kenya maps FR 251/67, FR 251/26 and FR 267/22 and any other documents from Survey of Kenya regarding the said maps. That application was dismissed by the trial court on 30th April 2025 on the ground that there was no explanation given why the said documents had not been requested for at the time of filing the suit and/or the subsequent amendment of pleadings. It was the trial court’s view that the application had been brought after undue delay yet the information was readily available to the applicant, had he been diligent. In addition, it was observed that copies of the documents requested to be introduced were not annexed to the application, hence there was no basis upon which the court could consider granting the order.
3.The application before us is premised on the grounds that the appeal is arguable and has high chances of success as it raises triable issues involving a clear misapplication of the law apparent on the face of the ruling. According to the applicant, the learned Judge failed to uphold his right to fair trial under Articles 50(1) and 159 2(d) of the Constitution. He was apprehensive that in the absence of an order staying the trial court’s proceedings, this appeal will be rendered nugatory as the hearing in the matter in ELC No. 2 of 2022 was slated for 12th November 2025 and that the commencement of the hearing would fatally defeat his rights under Articles 47 and 50 of the Constitution. On the other hand, it was averred, the respondents will not suffer any prejudice if the orders sought are granted since upon determination of this appeal, the proceedings in the Environment and Land Court will just set down the matter for hearing from where it was left. The applicant reiterated that it is necessary to stay the proceedings in ELC 2 of 2022 to preserve the substratum of the appeal otherwise this appeal will be rendered nugatory if the appeal eventually succeeds.
4.The application was opposed by a replying affidavit sworn, on behalf of the 3rd and 4th respondents, by the 4th respondent. It was averred that: the case was instituted by the applicant way back in 2018 when the applicant filed all documents he considered relevant; that the applicant had been notorious in filing additional documents and similarly sought to amend his pleadings severally; that although the applicant sought leave to file additional documents, the said documents were not annexed to the application; that the applicant has not established any error on the part of the trial court in declining to exercise its discretion in his favour, particularly after benefitting severally from the exercise of that discretion prior to 9th October 2024; that in the circumstances, the appeal is not arguable; that the applicant has failed to demonstrate that if the stay is declined, the appeal would be rendered nugatory as the applicant had all the documents and did not explain why he did not adduce them; that the applicant, without any explanation, took nearly 6 months before making the application.
5.The plenary hearing of this application took place on 12th November 2025 when learned counsel, Mr Mburugu, appeared for the applicant while learned counsel, Mr Kenvine Ouma, appeared for the 3rd and 4th respondents. There was no appearance for the 1st and 2nd respondents despite due service on them of the hearing notice. Learned counsel relied on their written submissions which they briefly highlighted.
6.On behalf of the applicant, reference was made to rule 5(2) (b) of this Court’s Rules that an applicant has to establish that the appeal is arguable and that unless an order of stay is granted, its success would be rendered nugatory. According to the applicant, he was not able to procure the letter earlier as the file in the Survey of Kenya had been missing, and that filing of the letter was necessary as it would assist the court in determining the issues in dispute. He also stated that although he had requested for computation and authentication slips from the Survey of Kenya, the said office informed him that these documents were not available to the public and thereby issued him with the letter of 14th November 2024. It was submitted that the evidence sought to be adduced would not alter the character of the case and would not prejudice the respondents for the reason that it was not bulky, the hearing of the main suit had not commenced and that the respondents could also be given leave to file additional documents in rebuttal thereof. The applicant asserted that the right to fair hearing is paramount and ought to be accorded to all parties fairly without undue regard to procedural technicalities, thus the appeal herein is arguable with high chances of success.
7.As to whether the appeal will be rendered nugatory in the absence of the orders sought, the applicant submitted that the hearing of the suit is likely to result in waste of valuable judicial time if the appeal were to succeed thus the appeal would be rendered nugatory. In his view, it is necessary and just to stay the proceedings in ELC 2 of 2022 to preserve the substratum of the appeal.
8.On behalf of the 3rd and 4th respondents, it was submitted: that the applicant failed to establish the legal requirements for the grant of stay of proceedings as set out in Trust Bank Limited and Another v Investech Bank Limited & 3 Others [2000] eKLR; that the dismissal of the application was justified due to the applicant’s notoriety in filing documents out of time which eventually led to his being restrained vide an order of 9th October 2024 from filing additional documents before the court; that on the authority of the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR, the court should not be sympathetic to parties who fail to comply with the rules; that as held in Zacharia Okoth Obado v Edward Akongó Oyugi & 2 Others [2014] eKLR, Article 159(2)(d) is not a panacea for all procedural shortfalls; that the ruling declining to grant the applicant leave to adduce additional document being an interlocutory ruling, the applicant is at liberty to challenge it on appeal after the final judgement is delivered; that delaying the substantive proceedings merely to address the interlocutory issue would constitute an abuse of the appeal mechanism and cause greater prejudice to the respondents; that the applicant did not promptly move the Court as this application was brought 6 months after the ruling by the trial court and is only intended to stall the hearing of the case that was scheduled for 12th November 2025; that granting the application would unfairly prejudice the respondents, leading to delay of justice, increase costs arising from protracted litigation, frustration of finality and the orderly progression of judicial proceedings.
9.We have considered the application, the affidavits in support of and in opposition to the application as well as the submissions made.
10.In application under rule 5(2)(b) of the Rules of this Court, under which the present application was brought, the applicant is required to satisfy the Court that he has an arguable appeal, or one that is not frivolous. In addition, the applicant must demonstrate that the appeal, if successful, would be rendered nugatory absent stay. Both conditions must be satisfied if the stay is to be granted. However, in applications where the stay sought is to suspend the proceedings before the trial court, the threshold is slightly higher than in applications for stay of execution pending appeals. This must be so since staying proceedings has the effect of derailing the pending proceedings before a final determination is made in the suit. It interferes with the hearing schedules of the trial court and may lead to injustice being occasioned to the respondent whose constitutional right under Article 159(2)(b) may thereby be curtailed.
11.Therefore, in determining whether or not to stay proceedings, the Court must weigh the conflicting claims of both parties while considering each case on its own merits in line with the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act. The Court must consider the principle of proportionality in the exercise of the discretion. This was appreciated in African Safari Club Limited v Safe Rentals Limited [2010] eKLR, where this Court stated that:
12.This Court further noted in Lucy Njoki Waithaka v Tribunal Appointed to Investigate the Conduct of the Honourable Lady Justice Lucy Njoki Waithaka & Judicial Service Commission; Kenya Magistrates & Judges Association (Interested Party) [2020] eKLR that:
13.Halsbury’s Laws of England, 4th Edn. Vol. 37 page 330 and 332 cautions that:
14.In this case, on 9th October 2024 the trial court barred the applicant from filing further documents. Without purporting to determine the appeal, we form a dim view of the prospects of the appeal succeeding. Apart from that, there are clearly no exceptional circumstances that would warrant staying proceedings. The order being appealed against was made in an interlocutory application in exercise of judicial discretion. The proceedings are still in their infancy in so far as the hearing is concerned. As held by this Court in David Morton Silverstein v Atsango Chesoni [2002] 1 KLR 867; [2002] 1 EA 296,
15.We have said enough to show that this application is unmerited.It is dismissed with costs to the 3rd and 4th respondents.
16.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF DECEMBER, 2025.D. K. MUSINGA, (PRESIDENT)....................................JUDGE OF APPEALJOEL NGUGI....................................JUDGE OF APPEALG. V. ODUNGA....................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR