Busienei & 3 others v Chepkwony (Suing as the Administrator of the Estate of Elizabeth J. Sirma) & 6 others; Kamau (Interested Party)
The bottom line
#Kenya's Court of Appeal refused to pause a long-running land case, ruling that winning an appeal later would not be pointless because the trial outcome can still be challenged.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is competent notwithstanding that two applicants are deceased and unsubstituted
- 2.Whether the 3rd interested party had authority to swear an affidavit on behalf of the 4th interested party
- 3.Whether the application is barred by sub judice or res judicata
- 4.Whether the intended appeal is arguable
- 5.Whether the appeal would be rendered nugatory if stay of proceedings is not granted
Key legal issues
#Competence of application where two applicants died without substitution
The infraction is not fatal; the application proceeds only at the instance of the surviving 2nd and 3rd applicants
Rule 102(1) provides that an appeal does not abate on death and allows substitution with a legal representative. The Court cannot grant reliefs for deceased applicants without substitution, but the surviving applicants remain proper parties, so the application survives.
Authority of the 3rd interested party to swear an affidavit for the 4th interested party
The affidavit is discounted to the extent it applies to the 4th interested party, but joint counsel submissions are retained for both
Without written authority the affidavit could not bind the 4th interested party. However, since both shared counsel and filed joint written submissions through the same firm, the submissions are considered on behalf of both.
Arguability of the intended appeal
The intended appeal is arguable, particularly on whether the trial judge properly exercised discretion in setting aside the 2016 judgment and ordering a de novo hearing
The Court accepted that the question whether the trial court properly exercised its discretion in setting aside a judgment after two similar applications had been dismissed raised arguable issues warranting consideration on appeal.
Nugatory aspect and delay
The appeal would not be rendered nugatory because the trial court's outcome remains subject to review or appeal; the application also suffered inordinate unexplained delay
The hearing before the ELC is reversible since its outcome is open to appeal or review, so no substantial loss was shown. Further, the applicants waited close to five years after the notice of appeal to seek stay, without satisfactory explanation, and a stay would lock out the interested parties.
Legal principles established
#- An appeal does not abate on the death of a party; substitution of a legal representative is required before reliefs can be granted for a deceased applicant, but non-substitution of some applicants is not fatal where others prosecute the application
- Stay of proceedings under rule 5(2)(b) requires the applicant to satisfy both conjunctive limbs: an arguable appeal and that the appeal would be rendered nugatory without stay
- The pendency of separate proceedings before the trial court does not oust the Court of Appeal's jurisdiction under rule 5(2)(b)
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party
Court orders
#- 1.Application for stay of proceedings dismissed
- 2.Costs of the application shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Kitale
- ELC Case No. 131 of 2013 (now Eldoret ELC Case No. 27 of 2012)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings in Eldoret ELC Case No. 27 of 2012 pending hearing and determination of Civil Appeal No. E221 of 2021
Applicants satisfied only the arguability limb; failed to demonstrate the appeal would be rendered nugatory, and there was inordinate unexplained delay of close to five years
Costs
Costs of this application shall be in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the cumulative threshold having not been met, this application fails and is accordingly dismissed. Costs of this application shall be in the appeal.
applications of this nature are subject to a party succeeding on two limbs; first 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
The grant of stay is an equitable remedy which is to be granted sparingly and only in deserving cases.
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.
Issues in the judgment
#Judge name inconsistency between coram and signature block
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busienei & 3 others v Chepkwony (Suing as the Administrator of the Estate of Elizabeth J. Sirma) & 6 others; Kamau (Interested Party)", Case Analysis (2026). Civil Appeal (Application) E017 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2015/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.