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ELCDismissedNot stated (Embu ELC appeal; application dated 3/4/2025)· [2025] KEELC 3817 (KLR)

Beth Ndorongo t/a Beth Ndorongo & Co. Advocates v Mizizi Holding Ltd & another (Environment and Land Appeal E016 of 2025) [2025] KEELC 3817 (KLR)

Environment and Land Court
7 May 2025
KBK. Bor
1,448 words in judgment
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The bottom line

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The Environment and Land Court in Embu refused to pause a land case, ruling the applicant showed no arguable appeal and only caused delay.

What this practically means

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Executive summary

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Beth Ndorongo, trading as Beth Ndorongo & Co. Advocates, applied by notice dated 3/4/2025 for a stay of further proceedings in Embu CM ELC Case No. 89 of 2018, specifically to halt judgment scheduled for 12/5/2025, pending her appeal against the ruling of Hon Atieno J. Otieno (SRM) delivered on 13/3/2025 dismissing her application to reopen the case after it proceeded in the absence of her advocate. She argued she would suffer grave prejudice, including to her professional standing, if denied a chance to defend professional negligence claims, and that her appeal was arguable. The 1st Respondent, Mwangi K. Mukururi, opposed, characterising the application as an abuse of process, a replica of an earlier application dealt with in ELC Appeal No. 037 of 2024, res judicata, and part of a pattern of delaying tactics contrary to Article 159(2)(b) of the Constitution and the overriding objective of the Civil Procedure Act. Adopting the principles in William Odhiambo Ramogi v Attorney General [2020] eKLR, the court held that although an appeal was pending, the Appellant failed to demonstrate arguable issues, that the appeal would be rendered nugatory, or exceptional circumstances warranting a stay, and that the delay in the lower court was occasioned by her own conduct. The application dated 3/4/2025 was dismissed with costs to the 1st Respondent. Judgment delivered virtually at Embu on 7 May 2025 by K. Bor, Judge.

Key legal issues

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Whether the threshold for stay of proceedings pending appeal was met

Holding

The application failed; the Appellant did not demonstrate arguable issues, nugatory-ness or exceptional circumstances, and delay was attributable to her own conduct

Reasoning

Applying the Ramogi principles, the court found an appeal was pending but the Appellant did not identify arguable issues or show the appeal would be rendered nugatory. The 1st Respondent demonstrated unreasonable delay occasioned by the Appellant, who had been given several opportunities to defend the case but failed to do so. The court declined stay and awarded costs to the 1st Respondent.

p. 3

Legal principles established

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  • Stay of proceedings requires an appeal actually pending, an explanation why stay was not sought in the appellate court, demonstration of arguable issues or that the appeal would be rendered nugatory, and exceptional circumstances warranting a stay rather than conclusion of the case
  • Stay of proceedings must be filed expeditiously and the court must balance the interests of all parties given their delaying effect

Court orders

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  1. 1.Stay of proceedings in Embu CM ELC Case No. 89 of 2018 declined; orders sought in the application dated 3/4/2025 not granted
  2. 2.1st Respondent to have costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Civil Procedure ActSection 7 (res judicata); overriding objective

Cases cited (1)

  • William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
On appeal from
Chief Magistrate's Court, Embu (Embu CM ELC Case No. 89 of 2018)
89 of 2018
Jurisdiction invoked
Appellate jurisdiction over subordinate court ruling (statutory appeal not expressly cited in judgment)

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, "Beth Ndorongo t/a Beth Ndorongo & Co. Advocates v Mizizi Holding Ltd & another (Environment and Land Appeal E016 of 2025) [2025] KEELC 3817 (KLR)", Case Analysis (2025). Not stated (Embu ELC appeal; application dated 3/4/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3817/eng@2025-05-07

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