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ELCDismissedRuling on Notice of Motion dated 2/X0/2024 in Kitale ELC (Originating Summons) suit filed X0/11/2022· [2025] KEELC 4340 (KLR)

Kitavi v Chesiriken (Suing as Personal Representative of Enock M Psenjen (Deceased)) & 2 others (Enviromental and Land Originating Summons E005 of 2022) [2025] KEELC 4340 (KLR)

Environment and Land Court
9 June 2025
1,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court refused to pause an adverse possession case just because a related appeal was ongoing, ruling appeals don't automatically freeze lawsuits.

What this practically means

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Executive summary

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By a notice of motion dated 2/X0/2024, the 1st and 2nd defendants applied to stay the plaintiff's adverse possession suit pending determination of Kisumu Court of Appeal Civil Appeal No. E008 of 2021, lodged by Lois Chesiriken and Stephen Kiplangat Psenjen against Victoria Masinde and Amy Chelagat Kiptui. The appeal arose from Kitale ELC No. 136 of 2006, in which judgment delivered on 30/9/2020 favoured the party seeking specific performance of agreements dated X0/6/2003 and 30/9/2003 over Kitale Municipality Block X0/3 (LR No. 2XX6/5X1). The applicant relied on the supporting affidavit of Stephen Kiplangat Psenjen and written submissions citing Chege -vs- Gachora and Christopher Ndolo Mutuku. The respondent opposed through a replying affidavit sworn 11/11/2024, contending she was a stranger to both the appeal and the earlier suit, and that a stay would infringe her rights to access justice and a fair hearing in her independent adverse possession claim. The court applied the settled tests in RE Global Tours & Travel Ltd and Kenya Wildlife Service -vs- James Mutembei, holding that stay of proceedings is a grave judicial action granted sparingly and only in exceptional circumstances, and that an appeal does not automatically stay proceedings absent sufficient cause under Order 42 Rule 6(1). The court found the nexus between the appeal and this suit undemonstrated: specific performance and adverse possession are different causes of action, the plaintiff was not party to the former suit or the appeal, and the defendants had not counterclaimed. The application was found lacking in merit and dismissed with costs on 9 June 2025.

Key legal issues

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Whether the pending appeal in a related suit justified a stay of these proceedings

Holding

No - the nexus between the appeal and this suit was not demonstrated; specific performance and adverse possession are distinct causes of action, and the plaintiff here was neither party to the former suit nor to the appeal

Reasoning

The applicants merely asserted that the appeal outcome would impact this suit without showing how. The plaintiff was not a party in Kitale ELC No. 136 of 2006 nor joined in the appeal. The defendants in this suit had not counterclaimed for the land claimed by the plaintiff, and specific performance and adverse possession are different causes of action, so the appeal's outcome would not determine this adverse possession claim.

p. 2
02

The threshold for granting a stay of proceedings

Holding

Stay of proceedings is a grave judicial action interfering with access to justice and fair hearing; the test is high and stringent, granted sparingly in exceptional circumstances

Reasoning

The court adopted the tests in RE Global Tours & Travel Ltd and Kenya Wildlife Service -vs- James Mutembei: stay interferes with the right to conduct litigation and access to justice, so the applicant must show the proceedings are frivolous, vexatious, harassing or manifestly groundless, and the court must weigh the pros and cons of granting or refusing the order.

p. 2

Legal principles established

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  • A stay of proceedings is a discretionary, not automatic, remedy granted sparingly and only in exceptional circumstances
  • An appeal does not operate as an automatic stay of proceedings; sufficient cause must be demonstrated
  • A party seeking a stay of proceedings must show it is in the interest of justice, considering expeditious disposal, merits of the intended appeal, judicial time and expedition of the application

Court orders

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  1. 1.The application dated 2/X0/2024 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(a), (b), (c) and (d)
  • Civil Procedure ActSections 1A, 1B and 3
  • Civil Procedure RulesOrder 42 Rule 6(1)

Cases cited (8)

  • Chege -vs- Gachora
    Civil Appeal 265 of 2023 [2024] KEHC 5821
  • Christopher Ndolo Mutuku & Another -vs- CFC Stanbic Bank Ltd
    [2015] eKLR
  • RE Global Tours & Travel Ltd
    HCWC No. 43 of 2000
  • Kenya Wildlife Service -vs- James Mutembei
    [2019] eKLR
  • David Morton Silverstein -vs- Atsango Chesoni
    [2001] eKLR
  • Kenya Commercial Bank Limited -vs- Benjoh Amalgamated Limited
    [2017] eKLR
  • Niazsons (K) Ltd vs- China Road & Bridge Corporation Kenya
    [2001] eKLR
  • Muchanga Investments Ltd -vs- Safaris Unlimited African Ltd & Others
    [2009] eKLR
Jurisdiction invoked
Inherent powers under Sections 1A, 1B and 3 of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Kitavi v Chesiriken (Suing as Personal Representative of Enock M Psenjen (Deceased)) & 2 others (Enviromental and Land Originating Summons E005 of 2022) [2025] KEELC 4340 (KLR)", Case Analysis (2025). Ruling on Notice of Motion dated 2/X0/2024 in Kitale ELC (Originating Summons) suit filed X0/11/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4340/eng@2025-06-09

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