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ELCDismissedNot stated in judgment (reference to Court of Appeal Appeal No. COACA/E028 of 2025, Maisha Bora Limited v Hajila Bajila Guyo & 4 others)· [2025] KEELC 5896 (KLR)

Guyo v Maisha Bora Limited & 4 others (Environment and Land Case 149 of 2018) [2025] KEELC 5896 (KLR)

Environment and Land Court
23 July 2025
2,190 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi refused to pause a land fraud case, ruling that filing an appeal alone is not enough to stop proceedings.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (E. K. Makori, J) on a Notice of Motion dated May 20, 2025 by the 1st Defendant, Maisha Bora Limited, seeking a stay of proceedings pending the hearing and determination of its appeal to the Court of Appeal in Malindi (Appeal No. COACA/E028 of 2025) against a ruling of February 26, 2025 dismissing the 1st Defendant's preliminary objection. The objection had raised absence of consent under Section 30(1) of the Land Adjudication Act, bypassing of the Act's dispute resolution mechanism and the exhaustion doctrine, non-compliance with Section 13A of the Government Proceedings Act, and limitation under Sections 7 and 17 of the Limitation of Actions Act. The court, applying the Mukisa Biscuits formulation on preliminary objections, had found the claim concerned post-adjudication fraud, that no government-officer defendant complained of missing notice, and that limitation was a trial issue. On the stay application, the court held that the Applicant had not shown steps taken to pursue the appeal, that hearing the case on its merits would definitively resolve the issues, and that no prejudice or substantial loss would result. Noting the deluge of applications and the filing of the motion two days before the main hearing in disregard of case management orders of February 25, 2025, the court found bad faith, dismissed the application with costs to the Plaintiff, and flagged a typographical error in the earlier ruling regarding the date of the preliminary objection.

Key legal issues

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01

Whether a stay of proceedings should issue pending an interlocutory appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

Stay of proceedings refused; the Applicant failed to demonstrate steps taken to prosecute the appeal and showed no prejudice or substantial loss, and the application was an abuse of process filed in bad faith.

Reasoning

The court observed it could not revise its stance by stopping the proceedings and that the Applicant had not shown steps taken to pursue the appeal, only asserting one had been filed. Hearing the case on its merits would definitively resolve the issues. Filing yet another application two days before the main hearing, in disregard of case management orders of February 25, 2025, demonstrated bad faith and a pattern of delaying applications.

p. 5
02

Whether the Land Adjudication Act's consent requirement and exhaustion doctrine barred the suit (recap of the earlier ruling under appeal)

Holding

The preliminary objection on this ground was rejected because the claim concerns alleged post-adjudication fraud, not the adjudication process itself.

Reasoning

Once the discharge of charge and transfer instruments were executed and registered, ownership interest passed from the Settlement Fund Trustee to the plaintiff, extinguishing the requirement of consent to sue. The pleadings disclose a claim based on alleged fraudulent activities over the suit properties post-adjudication, so the adjudicative mechanism and exhaustion doctrine authorities cited by the 1st defendant were inapplicable.

p. 3
03

Whether the suit was time-barred under Sections 7 and 17 of the Limitation of Actions Act (recap of the earlier ruling)

Holding

Limitation could not be determined on the pleadings and was left for trial.

Reasoning

The plaintiff asserted she was not seeking to recover land but to cancel fraudulently obtained titles and was in actual possession and occupation. Given multiple prior actions over the properties, including a quashed NLC cancellation of the 1st defendant's title and competing claims by interested parties, time for purposes of recovery of land could not be deciphered from the pleadings and was a matter for trial.

p. 4
04

Whether failure to issue notice under Section 13A of the Government Proceedings Act warranted dismissal (recap of the earlier ruling)

Holding

Dismissal at a preliminary stage was not warranted since neither proposed government-officer defendant complained of non-service of notice.

Reasoning

Although the proposed 8th and 9th defendants were government officers and no notice of intention to sue was demonstrated, neither of them had raised any grievance about the absence of service. The court therefore held that this could not be a ground to dismiss the plaintiff's claim at a preliminary stage.

p. 4

Legal principles established

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  • A preliminary objection must be raised on pure points of law, and the court need look only to the pleadings
  • Where a suit discloses claims arising past the adjudication stage (fraud post-adjudication), the adjudication mechanisms and exhaustion doctrine under the Land Adjudication Act do not apply
  • Where time for recovery of land cannot be deciphered from the pleadings among the parties, limitation is a matter to be determined at trial rather than on a preliminary objection

Court orders

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  1. 1.The Notice of Motion dated May 20, 2025 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 11
  • Land Adjudication Act (Cap 284)Sections 2, 26 to 30, 30(1), 30(a)
  • Government Proceedings Act (Cap 40)Section 13A
  • Limitation of Actions ActSections 7 and 17

Cases cited (3)

  • Ahmed Musa Ismael v Kumba Ole Ntamorua and 4 others
    [2014] eKLR
  • Stanley Kang'ethe Kinyanjui v Tony Ketter and 5 Others
    [2013] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors
    [1969] EA 696
Jurisdiction invoked
Inherent jurisdiction and case management powers; application grounded on Order 42 Rule 6 of the Civil Procedure Rules (stay of proceedings pending appeal)

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, "Guyo v Maisha Bora Limited & 4 others (Environment and Land Case 149 of 2018) [2025] KEELC 5896 (KLR)", Case Analysis (2025). Not stated in judgment (reference to Court of Appeal Appeal No. COACA/E028 of 2025, Maisha Bora Limited v Hajila Bajila Guyo & 4 others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5896/eng@2025-07-23

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