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ELCDismissedELC Case No. 345 of 2019· [2026] KEELC 38 (KLR)

Gathuru v Chege & 5 others (Civil Suit 345 of 2019) [2026] KEELC 38 (KLR)

Environment and Land Court
19 January 2026
CMC.G. Mbogo
1,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pause a case filed five years after an appeal, ruling that stay requests belong in the Court of Appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court disposes of a notice of motion dated 24th March 2025 by the 2nd defendant seeking a stay of further proceedings in this suit pending the hearing and determination of Civil Appeal No. 23 of 2020 before the Court of Appeal. The applicant, widow and administratrix of the estate of Ngonya wa Gakonya, asserted that her late husband purchased the suit land, Dagoretti/Riruta/1648, under a 1979 agreement and had been in continuous occupation; that the 1st defendant nonetheless sold and transferred the land to the 3rd defendant in 2013/2014 in disregard of that agreement; and that her earlier suit challenging that sale (ELC Case No. 1524 of 2014) was decided against her on 8th August 2019, prompting the pending appeal. She argued that the present suit, commenced in 2019, overlapped with the appeal in parties and issues and should be stayed on sub-judice principles. The 4th defendant opposed, contending the application failed the evidentiary threshold, that the appeal was a non-starter since her claim was held statute-barred under section 7 of the Limitation of Actions Act, and that the application was an abuse of process and delaying tactic. The court held that stay of proceedings is a grave judicial action requiring a higher threshold, that the application ought to have been made in the Court of Appeal as the appropriate forum, and that the applicant offered no explanation for the roughly five years and two months delay. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the stay of proceedings should be granted by this court rather than the Court of Appeal

Holding

The application was misconceived in forum: a stay of proceedings pending an appeal belongs in the appellate court, and neither this court nor the High Court can override that hierarchy

Reasoning

The court adopted the dictum in William Odhiambo Ramogi that where a stay is sought in the trial court rather than the higher court and there is no express statutory provision for such an application, the applicant must explain why. There is a policy in favour of applications for stay being handled by the appellate court because it is familiar with its docket and can calibrate any order accordingly. The court held that neither it nor the High Court, a court of equal jurisdiction, can override this hierarchy.

p. 3
02

Whether the inordinate delay of about 5 years and 2 months in seeking the stay was explained

Holding

The applicant failed to offer any cogent reason for the delay between lodging the appeal in 2020 and moving the court in March 2025

Reasoning

The memorandum of appeal was dated 21st January 2020 following the judgment of 8th August 2019, while the application was dated 24th March 2025. The court found no reasons, cogent or otherwise, for this delay of approximately 5 years and 2 months in seeking a stay of proceedings, which weighed against granting the discretionary relief.

p. 4

Legal principles established

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  • Stay of proceedings is a grave judicial action requiring a higher threshold than a stay of execution because of its impact on access to justice
  • An application for stay of proceedings pending appeal should ordinarily be made in the court to which the appeal is preferred, and where not, the applicant must explain why

Court orders

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  1. 1.The notice of motion dated 24th March 2025 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A and 6
  • Civil Procedure RulesOrder 51
  • Limitation of Actions ActSection 7

Cases cited (5)

  • Kenya National Commission on Human Rights v Attorney-General, Independent Electoral and Boundaries Commission and 16 others (interested Parties)
    2020 KESC 54 (KLR)
  • Mwaita v Attorney-General & Another
    KEELC 4502 (KLR)
  • William Odhiambo Ramogi & 3 Others v. Honourable Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
  • In Re Rai Plywoods (K) Ltd
    [2004] KEHC 67 (KLR)
  • William Odhiambo Ramogi & 2 Others v. the Honourable Attorney General & 3 Others
    [2019] eKLR
Jurisdiction invoked
Sections 1, 1A and 6 of the Civil Procedure Act and Order 51 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, "Gathuru v Chege & 5 others (Civil Suit 345 of 2019) [2026] KEELC 38 (KLR)", Case Analysis (2026). ELC Case No. 345 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/38/eng@2026-01-19

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