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ELCDismissedNot stated in the judgment· [2025] KEELC 389 (KLR)

Kano Kajulu Farmers Co-operative Society Limited v County Lands Registrar, Kisumu & another (Environment & Land Case 46 of 2018) [2025] KEELC 389 (KLR)

High Court of Kenya (not expressly stated; adverse possession suit heard at Kisumu)
6 February 2025
1,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu court refused to pause an adverse possession case, saying the applicant waited too long and failed to link its claim to a separate succession dispute.

What this practically means

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Executive summary

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This ruling by E. Asati, Judge, dated and delivered virtually at Kisumu on 6th February 2025, determines a Notice of Motion dated 6th March 2024 brought by the Plaintiff/Applicant under Order 42 Rule 4 of the Civil Procedure Rules. The Applicant, whose Originating Summons dated 11th September 2018 claims ownership of suit land by adverse possession, sought a stay of proceedings pending determination of Kisumu HCC Succession Cause No. 98 of 2013, in which an application for revocation of the grant under which the 2nd Defendant acquired title was pending, and leave to file a further list of documents and recall its witnesses, having closed its case on 20th September 2023 after the 2nd Defendant served a further list of documents dated 13th February 2024. Both Respondents opposed: the 1st Respondent (Attorney General) argued the application was an afterthought brought with inordinate delay and that no nexus existed between the grant and the Applicant's claim; the 2nd Respondent (Mary Akeyo Ogendo) argued the application was brought in bad faith and that the court's orders would attach to the land regardless of the succession outcome. Counsel relied on Kenya Wildlife Services v James Mutembei on the stringent test for stay of proceedings, Githu v Ndere on adverse possession, Global Tours & Travel, and Mzee Wanjie v Saikwa on additional evidence. The court held the stringent conditions were not met: the Applicant knew of the revocation application since 2022 yet testified and closed its case before applying, and no nexus existed between its adverse possession claim and the succession cause. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether an order of stay of proceedings should issue pending the outcome of a succession cause whose grant underpins the defendant's title

Holding

No. The stringent conditions for stay of proceedings were not demonstrated; the adverse possession claim had no nexus to the succession cause, and the orders ultimately made in this suit would attach to the land regardless of the succession outcome.

Reasoning

The court applied the principle from Kenya Wildlife Services v James Mutembei that stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation, requiring a higher and stringent test. The Applicant had known of the revocation application since at least 2022 yet testified and closed its case before applying. No nexus between the adverse possession claim and the succession cause was established, so the application was dismissed with costs.

p. 3
02

Whether the Applicant should be allowed to file a further list of documents and recall witnesses after closing its case

Holding

No. Leave was refused because the Applicant was aware of the succession proceedings before closing its case, and the additional evidence sought was neither explained nor attached to the application.

Reasoning

The court noted the Applicant's own annexures showed knowledge of the revocation application since 2022, yet the Applicant testified and closed its case on 20th September 2023 without applying. Relying on Mzee Wanjie & 93 Others v Saikwa, counsel's point that the nature of the additional evidence had not been explained or attached was not contradicted. A party cannot keep searching for and inventing evidence as the case proceeds; delay was unexplained and the application was an afterthought.

p. 2

Legal principles established

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  • Stay of proceedings is a grave judicial action that seriously interferes with a litigant's right to conduct litigation, and the test for granting it is higher and more stringent than for stay of execution pending appeal
  • A party seeking a stay of proceedings must demonstrate a nexus between the matter whose outcome is awaited and the claim before the court
  • An adverse possession claim is a claim against the land, and it matters not against whom precisely (registered owner or objector in succession proceedings) it is brought

Court orders

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  1. 1.The Notice of Motion dated 6th March, 2024 is dismissed
  2. 2.Costs of the application are awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 4

Cases cited (4)

  • Kenya Wildlife Services -vs- James Mutembei
    (2019) eKLR
  • Githu -vs- Ndere
    (1984) eKLR 77
  • Global Tours & Travel Limited
    Nairobi HC Winding Up Cause NO.43 of 2000
  • Mzee Wanjie & 93 Others -vs- Saikwa & Others
    (1982 – 88) 1 KRA 462
Jurisdiction invoked
Order 42 Rule 4 of the Civil Procedure Rules (original civil jurisdiction; the judgment does not cite a constitutional provision)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kano Kajulu Farmers Co-operative Society Limited v County Lands Registrar, Kisumu & another (Environment & Land Case 46 of 2018) [2025] KEELC 389 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/389/eng@2025-02-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.