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ELCPartially Allowed

Busienei & 30 others v Kipkeibon Estates Limited (Environment and Land Case 22 of 2022) [2025] KEELC 7497 (KLR)

Environment and Land Court
29 October 2025
828 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 at Kapsabet paused a 17-year land case, letting the plaintiffs pursue their Court of Appeal challenge within 45 days.

What this practically means

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Executive summary

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This is a ruling-reclassification of a Notice of Motion dated 26th May 2025 by the plaintiffs/applicants, who sought a stay of further proceedings pending an intended appeal to the Court of Appeal at Eldoret against a ruling delivered on 19th February 2025 dismissing their application dated 14th November 2024 (which had sought reopening of the case for hearing on the merits). The applicants lodged a Notice of Appeal dated 4th March 2025. The respondent, through the replying affidavit of its director Wambui Kosgey, opposed on the ground that the suit, begun by an originating summons dated 12th May 2008 for adverse possession and later referred to Court Annexed Mediation, had been pending for 17 years and litigation must come to an end, while conceding the applicants' right to pursue their appeal. In submissions, the applicants' counsel relied on Safaricom Ltd v Josenga Company Ltd and Turbo Highway Eldoret Ltd v Muniu; the respondent's counsel cited Order 42 Rule 6(2) and the Kaptien Farmers and Access Bank cases. The court held that under Order 42 Rule 6(4) the notice of appeal deemed the appeal filed, invoked the court's inherent jurisdiction to safeguard the subject matter of an appeal, and emphasised the fundamental principle of a fair opportunity to be heard. The application was allowed in terms of a stay of further proceedings, conditional on the applicants formally filing and serving their appeal within 45 days. Costs of the application were made to abide the outcome of the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application has merit
  2. 2.Whether a stay of further proceedings pending the intended appeal to the Court of Appeal should issue

Key legal issues

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01

Whether a stay of further proceedings pending an intended appeal to the Court of Appeal should be granted

Holding

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.

Reasoning

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.

p. 3
02

Whether the intended appeal was properly before the Court of Appeal for stay purposes

Holding

Yes; by virtue of Order 42 Rule 6(4), the Notice of Appeal dated 4th March 2025 deemed the appeal filed.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Stay of further proceedings in the suit pending the hearing and determination of the intended appeal before the Court of Appeal
  2. 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. 3.The costs of the application shall abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 3

Costs

The costs of the application shall abide the outcome of the intended appeal.

Quotable passages

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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.
p. 3Final orders - stay of proceedings granted
The costs of the application shall abide the outcome of the intended appeal.
p. 3Costs of the application
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
p. 3Inherent jurisdiction to preserve subject matter of appeal
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
p. 3Right to fair hearing in pursuing an appeal

Issues in the judgment

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minor

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

minor

The respondent's replying affidavit introduction is incomplete: 'the suit was initiated in the year by an originating summons dated 12th May 2008'

minor

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

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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, "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.