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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 2438 (KLR)

Too (Sued in her Capacity of and as the Representative of the Estate of Gilbert Kinyor (Deceased)) & another v Mugun (Suing as the legal representative of the Estate of Makaye Mugun Makai arap Mugun Mugun) & another (Environment and Land Appeal E002 of 2026) [2026] KEELC 2438 (KLR)

High Court of Kenya (sitting at Kapsabet)
18 March 2026
667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court paused a Kapsabet land case pending appeal, saying closing the defence may have denied the defendants their right to be heard.

What this practically means

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Executive summary

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This ruling by the High Court at Kapsabet (G.M.A. Ong'ondo, J) determined a Notice of Motion dated 20th January 2026 by the appellants/applicants, who are the defendants in Kapsabet CMELC Case No. E051 of 2021. Their defence case was closed by the Chief Magistrate's Court on 14th January 2026, provoking an intended appeal on grounds including denial of a reasonable opportunity to present their case. The applicants sought a stay of further proceedings in the lower court, setting aside of the closure ruling, re-opening of the defence case, and costs. Counsel for the applicants, Ms. Nekesa, urged prayers (b), (c) and (d). The respondents, though properly served as shown by an affidavit of service sworn on 11th March 2026, did not respond to the application, and the court relied on Festus Ogada v Hans Mollins on the consequences of non-response. Applying the settled test that an applicant must demonstrate an arguable appeal whose success would otherwise be rendered nugatory (Somak Travels v Gladys Aganyo), and anchored in the rights of access to justice and a fair hearing under Articles 48, 50(1) and 25(c) of the Constitution, the court found discernible arguable issues, including fair trial. The application was allowed in terms of the prayer for stay of proceedings, while the remaining orders, including costs, were directed to abide the outcome of the appeal.

Key legal issues

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01

Whether to stay further proceedings in the lower court pending the appeal

Holding

The application was found meritorious and stay of proceedings was granted

Reasoning

The court found discernible arguable issues, including fair trial, in the memorandum of appeal. Applying the arguability and nugatory test from Somak Travels v Gladys Aganyo, and anchored on the constitutional rights of access to justice and a fair hearing under Articles 48, 50(1) and 25(c), the court was persuaded that orders balancing the competing interests and suiting the interests of justice should issue. The closure of the defence case was characterised as denying the appellants a reasonable opportunity to present their case.

p. 2
02

Whether the ruling closing the defence case should be set aside and the defence case re-opened at this stage

Holding

Not granted at this stage; deferred to abide the outcome of the appeal

Reasoning

Although the applicants sought setting aside of the 14th January 2026 ruling and re-opening of the defence case, the court noted that those orders are already captured in the memorandum of appeal and belong to the hearing and determination of the appeal on merit. Only the stay of proceedings prayer was allowed; the remaining orders, including costs, were stayed to abide the appeal's outcome.

p. 2

Legal principles established

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  • In an application of this nature, the applicant must show that the appeal or intended appeal is arguable or not frivolous and that unless the order of stay is granted, the success of the appeal will be rendered nugatory
  • Parties have a right of access to justice and the right to be heard under Articles 48, 50(1) and 25(c) of the Constitution
  • A respondent who fails to respond to an application despite service cannot resist it

Court orders

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  1. 1.Stay of further proceedings in Kapsabet CMELC Case No. E051 of 2021 pending the hearing and determination of the appeal
  2. 2.The rest of the orders sought in the application, including costs, to abide the outcome of the appeal
On appeal from
Chief Magistrate's Court at Kapsabet
CMELC Case No. E051 of 2021
Jurisdiction invoked
Appellate jurisdiction over the Chief Magistrate's Court;Articles 48, 50(1) and 25(c) of the Constitution of Kenya 2010 invoked by the court

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, "Too (Sued in her Capacity of and as the Representative of the Estate of Gilbert Kinyor (Deceased)) & another v Mugun (Suing as the legal representative of the Estate of Makaye Mugun Makai arap Mugun Mugun) & another (Environment and Land Appeal E002 of 2026) [2026] KEELC 2438 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2438/eng@2026-03-18

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