Busienei & 30 others v Kipkeibon Estates Limited (Environment and Land Case 22 of 2022) [2025] KEELC 7497 (KLR)
The bottom line
#The Environment and Land Court at Kapsabet paused a 17-year land case, letting the plaintiffs pursue their Court of Appeal challenge within 45 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application has merit
- 2.Whether a stay of further proceedings pending the intended appeal to the Court of Appeal should issue
Key legal issues
#Whether a stay of further proceedings pending an intended appeal to the Court of Appeal should be granted
The application was allowed; stay of further proceedings was granted because the applicants had a right of appeal and the court has inherent jurisdiction to preserve the subject matter of the appeal.
The court noted the applicants had lodged a Notice of Appeal against the ruling of 19th February 2025 dismissing their application dated 14th November 2024. Order 42 Rule 6(4) deems such a notice to constitute a filed appeal. The respondent conceded the applicants' right to pursue the appeal. The court invoked its inherent jurisdiction to safeguard the subject matter of the appeal and the fundamental principle of a fair opportunity to be heard, and granted the stay on conditions.
Whether the intended appeal was properly before the Court of Appeal for stay purposes
Yes; by virtue of Order 42 Rule 6(4), the Notice of Appeal dated 4th March 2025 deemed the appeal filed.
The applicants asserted dissatisfaction with the entire ruling of 19th February 2025 and their intention to appeal to the Court of Appeal at Eldoret. The court quoted Order 42 Rule 6(4), which deems an appeal filed upon giving of a notice of appeal. The respondent's own replying affidavit acknowledged the applicants were within their right to pursue the appeal. This established the bona fides of the intended appeal for purposes of the stay.
Legal principles established
#- For purposes of Order 42 Rule 6, an appeal to the Court of Appeal is deemed filed when a notice of appeal is given under the Court's Rules
- The court has inherent jurisdiction to safeguard the character and integrity of the subject matter of an appeal pending resolution of the contested issues
- A fair opportunity to be heard is a fundamental principle of justice and may favour allowing a party to pursue a prospective appeal
Court orders
#- 1.Stay of further proceedings in the suit pending the hearing and determination of the intended appeal before the Court of Appeal
- 2.The applicants shall formally file an appeal to the Court of Appeal and serve the same within forty-five (45) days from the date of the order
- 3.The costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 48 of the Constitution of Kenya 2010 and section 1A of the Civil Procedure Act (Chapter 21, Laws of Kenya); Order 42 Rule 6 of the Civil Procedure Rules 2010
Relief refused
#Costs of the application to the applicants
The court deferred costs to the outcome of the intended appeal rather than awarding them to either party
Costs
The costs of the application shall abide the outcome of the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Thus, there is merit in the application. I allow the same in terms of stay of further proceedings sought therein as stated in paragraph 1 (a) hereinabove. The applicants shall formally file an appeal to the Court of Appeal and serve the same within forty-five (45) days from this date.
The costs of the application shall abide the outcome of the intended appeal.
the court has its inherent jurisdiction to safeguard the character and integrity of the subject matter of appeal, pending the resolution of the contested issues
The character of the subject matter and the obtaining circumstances favour the applicants to pursue their prospective appeal to the Court of Appeal as a fair opportunity to be heard is a fundamental principle of justice
Issues in the judgment
#The names of the parties and the case number are not stated in the judgment; parties are referred to only as plaintiffs/applicants and respondent
The respondent's replying affidavit introduction is incomplete: 'the suit was initiated in the year by an originating summons dated 12th May 2008'
Counsel submissions describe the application as sought to be allowed, but the respondent's framing and arguments as extracted conflate support of the application; the extracted submissions state 'counsel submitted that the application is merited and it be allowed accordingly' attributed to respondent's counsel, which appears inconsistent with a replying affidavit opposing the stay
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busienei & 30 others v Kipkeibon Estates Limited (Environment and Land Case 22 of 2022) [2025] KEELC 7497 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7497/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.