Registered Trustees of Child Welfare Society of Kenya v Diocese of Embu Trustees, Registered & another (Land Case E010 of 2022) [2026] KEELC 1482 (KLR)

Order 43 Rule 1 lists specific orders appealable as of right. Dismissal of a preliminary objection on locus standi is not among them. Such interlocutory rulings require leave under Section 75 of the Civil Procedure Act and Order 43 Rule 3. The Applicant's reliance on Order 43 Rule 1(1)(a) was misconceived, as that provision relates to orders on parties to suits, not dismissals of preliminary objections. This alone warranted dismissal of the application.

The court acknowledged Order 42 Rule 6(1) confers power on the court appealed from to stay proceedings for sufficient cause. However, citing Makena v Nalwa, it noted such applications from interlocutory rulings should ideally lie before the appellate court to avoid jurisdictional overreach. The court nonetheless proceeded to assess the stay criteria under its cautious exercise of inherent jurisdiction, finding they were not met.

Applying the Order 42 Rule 6(2) principles as adapted to stays of proceedings, the court found the appeal challenging the Respondent's statutory locus under the Trustees (Perpetual Succession) Act not arguable; that continuing the suit does not render any successful appeal nugatory since the appellate court can set aside a subsequent judgment; and that the 71-day unexplained delay post pre-trial compliance breached the 'without unreasonable delay' requirement.

The court weighed the decade-long delay since the National Land Commission's 2015 report and the 2019 judgment in ELC Petition No. 1 of 2018. It found the Applicant's history of multiple objections suggested dilatory tactics infringing the Respondent's right to fair trial, and that public interest in expeditious justice, particularly for vulnerable children, outweighed the Applicant's claims.