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ELCDismissedNot stated in the judgment (Notice of Motion dated 16th April 2024)· [2025] KEELC 862 (KLR)

Saptet Farm Company Limited v SK Soi Company Limited (Environment & Land Case 20 of 2006) [2025] KEELC 862 (KLR)

Environment and Land Court
27 February 2025
LOL. A. Omollo
3,436 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kericho refused to pause a land dispute pending appeal, ruling that a pending trial does not make an appeal pointless.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo J) determined a Notice of Motion dated 16th April 2024 in which the Plaintiff/Applicant sought a stay of proceedings pending its appeal against a ruling delivered on 29th February 2024 that dismissed its application to set aside the dismissal of its suit for want of prosecution on 12th July 2023. The underlying suit, filed by plaint dated 29th March 2006, sought eviction of the Defendant from plot Kericho/Municipality Block 5/437, refunds of rent, and other reliefs; the Defendant filed a defence and counterclaim seeking over Kshs 9.3 million for improvements, general damages for breach of contract, or alternatively an order for transfer of the property. The Plaintiff, through the affidavit of its director Charles Kiplangat Too, argued that it had an arguable appeal with high chances of success, that its suit was dismissed owing to conduct suggesting the matter had been compromised, and that hearing the counterclaim before the Court of Appeal determined the appeal would render the appeal nugatory and cause substantial loss. It offered security. The Defendant, through the affidavit of its director Moses Kiptoo Langat, opposed the application, asserting the Plaintiff's indolence over a suit pending over seventeen years, noting a prior similar application had been dismissed, and citing authority that stay of proceedings is a grave step with a high threshold. The court framed one issue: whether proceedings should be stayed pending appeal. Relying on Order 42 Rule 6(1), Halsbury's Laws of England, Port Florence Community Health Care v Crown Health Care Limited, and Turbo Highway Eldoret Ltd v Muniu, the court held that stay of proceedings is discretionary, exercised sparingly and only in exceptional cases; an arguable appeal is one that is not frivolous, but a trial and judgment on the merits does not render an appeal nugatory because a judgment is capable of being stayed. The Plaintiff demonstrated no exceptional circumstances beyond its apprehension about the counterclaim. The application was dismissed with costs on 27th February 2025.

Key legal issues

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01

Whether stay of proceedings should issue pending the Applicant's appeal against the ruling of 29th February 2024

Holding

The application was dismissed; the Applicant neither demonstrated an arguable appeal nor exceptional circumstances, and the possibility that the counterclaim would be heard did not render the appeal nugatory

Reasoning

The court applied Order 42 Rule 6(1) and the test from Port Florence Community Health Care and Turbo Highway Eldoret Ltd v Muniu: stay of proceedings is a grave discretionary remedy exercised sparingly. An arguable appeal need not succeed, only be non-frivolous, but the Applicant must also show exceptional circumstances. A judgment on the counterclaim on the merits is capable of being stayed, so hearing it would not render the appeal nugatory. The Applicant relied only on the apprehension that the counterclaim would proceed.

p. 8

Legal principles established

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  • An appeal is not rendered nugatory merely because the trial proceeds and a judgment on merits is given, since a judgment given is capable of being stayed
  • A party seeking stay of proceedings must demonstrate an arguable appeal and exceptional circumstances warranting the stay
  • Stay of proceedings is a serious interruption of a party's right to conduct litigation and should be exercised sparingly and only in exceptional cases

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion dated 16th April 2024 is dismissed
  2. 2.Costs of the application to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure ActSections 1A, 1B & 3A
  • Constitution of KenyaArticle 159; Article 159(2)(a), (b), (c) & (d)

Cases cited (11)

  • Kenya Wildlife Service vs James Mutembei
    [2019] eKLR
  • William Odhiambo Ramogi & 3 Others v Attorney General & 6 Others; Muslims for Human Rights & 2 Others (Interested Parties)
    [2020] eKLR
  • David Akongo Obilo v Dipen Hasmukhlal Faldu
    [2022] eKLR
  • Re Global Tours & Travel Ltd
    HCWC No. 43 of 2000
  • Ronald Mackenzie v Damaris Kiarie
    [2021] eKLR
  • Stanley Kinyanjui vs Tony Ketter & 5 Others
    [2013] eKLR
  • University of Nairobi v Ricatti Business of East Africa
    [2020] eKLR
  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
  • Port Florence Community Health Care v Crown Health Care Limited
    [2022] eKLR
  • Lucy Waithera Kimanga & 2 Others vs John Waiganjo Gichuri
  • Turbo Highway Eldoret Ltd v Muniu
    (Civil Appeal E040 of 2021) [2022] KEHC 10197 (KLR) (30 June 2022) (Ruling)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya

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, "Saptet Farm Company Limited v SK Soi Company Limited (Environment & Land Case 20 of 2006) [2025] KEELC 862 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 16th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/862/eng@2025-02-27

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