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ELCDismissedELCLC E023 of 2025

Benard Said Michael Mbarukh & 2 others v Rose Everlyn Tendwa

Environment and Land Court of Kenya
29 September 2026
4,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to pause a property case just because a stay application was pending at the Court of Appeal.

What this practically means

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Executive summary

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The Defendant/Applicant, Rose Everlyn Tendwa, moved the Environment and Land Court at Homa Bay by Notice of Motion dated 7th July 2026 seeking a stay of the hearing and all further proceedings in ELC Suit No. E023 of 2025 pending determination of her application for stay of execution and injunctive relief before the Court of Appeal in Civil Application No. E117 of 2026. She argued that continuation of the suit could render the appellate proceedings nugatory and expose her, as occupier of the suit premises, to eviction and irreparable prejudice. The Plaintiffs/Respondents opposed, contending that the alleged appellate application concerned succession proceedings against non-parties, that neither Plaintiff was party to it, that a similar application had been dismissed in the succession cause, and that the Applicant had a history of delaying the suit through adjournments and non-participation in mediation. Framing three issues - jurisdiction, threshold for stay, and costs - Wanyonyi J held that the Court had jurisdiction under Order 42 Rule 6(1) and Section 3A of the Civil Procedure Act but that the threshold for stay of proceedings is high and stringent. The mere pendency of an application before the Court of Appeal is not an actual order of stay and does not automatically justify halting a trial; the Applicant failed to demonstrate a nexus between the appellate application and this suit, concrete and irreversible prejudice, or that hearing the suit would render the appeal nugatory. Her three-month delay in filing the application and the Plaintiffs' constitutional right to expeditious determination weighed against stay. The application was dismissed with costs to the Plaintiffs/Respondents, and the suit was directed to proceed as scheduled.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction and discretion to stay the proceedings herein
  2. 2.Whether the Applicant has satisfied the threshold for grant of an order staying proceedings pending determination of the proceedings before the Court of Appeal
  3. 3.Who should bear the costs of the application

Key legal issues

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01

Jurisdiction and discretion to stay proceedings

Holding

The Court has jurisdiction under Order 42 Rule 6(1) and Section 3A of the Civil Procedure Act, but the discretion is not exercised as a matter of course; the threshold is high and stringent.

Reasoning

Order 42 Rule 6(1) provides that an appeal does not operate as a stay; a party must demonstrate sufficient cause. Section 3A preserves inherent power, but the court cautioned, following Kenya Wildlife Service v Mutembei, that stay of proceedings is materially different from stay of execution and seriously interferes with a litigant's right to be heard without delay.

p. 6
02

Whether sufficient cause for stay was established

Holding

No. The mere existence of an application before the Court of Appeal, without an actual stay order or demonstrated nexus and concrete prejudice, does not justify halting the suit.

Reasoning

The Applicant exhibited a document purporting to be a Court of Appeal application, but did not demonstrate the nexus between that application and this suit, which concerns parties' rights in the suit property while the appellate application arises from succession proceedings against non-parties. No Court of Appeal order restraining the hearing exists; apprehension of possible eviction is not concrete and irreversible prejudice.

p. 9
03

Interests of justice, delay and promptness

Holding

The interests of justice favour continuation of the suit; the Applicant's three-month delay in bringing the application and the history of delay weighed against stay.

Reasoning

Article 50(1) and Article 159(2)(b) guarantee expeditious determination, and Sections 1A and 1B of the Civil Procedure Act require just, expeditious resolution. The application was filed about three months after the alleged Court of Appeal application without explanation, and the suit has already been pending a considerable period. Judicial time is a scarce resource.

p. 12
04

Costs

Holding

Costs follow the event; the Respondents were compelled to oppose an application that failed to meet the threshold.

Reasoning

Under Section 27 of the Civil Procedure Act the general rule is that costs follow the event unless the Court has reason to depart from it. The Applicant did not establish sufficient grounds for the stay sought, so no reason to depart from the general rule arose.

p. 15

Legal principles established

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  • A pending application for stay before an appellate court does not have the legal effect of an actual order of stay; the trial court is not bound to halt proceedings absent an order from the superior court
  • Stay of proceedings is a grave judicial action with a high and stringent threshold, distinct from stay of execution
  • An application for stay of proceedings founded solely on apprehension or fear is generally insufficient; concrete evidence of harm or prejudice is required

Court orders

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  1. 1.The Defendant/Applicant's Notice of Motion dated 7th July 2026 is dismissed
  2. 2.The suit shall proceed to hearing and determination as previously scheduled without further unwarranted interruptions
  3. 3.Costs awarded to the Plaintiffs/Respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution

Relief refused

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Stay of hearing and all further proceedings in the suit pending determination of the Applicant's application in Court of Appeal Civil Application No. E117 of 2026

Mere pendency of an application before the Court of Appeal is not sufficient cause; no demonstrated nexus, concrete prejudice or risk of rendering the appeal nugatory

p. 14

Costs

Costs awarded to the Plaintiffs/Respondents (costs follow the event under Section 27 of the Civil Procedure Act)

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.

In the result, the Defendant/Applicant's Notice of Motion dated 7th July 2026 is hereby dismissed, the suit shall proceed to hearing and determination as previously scheduled without further unwarranted interruptions, and the costs are awarded to the Plaintiffs/Respondents.
p. 15Disposition - dismissal of stay application
Therefore, I have to distinguish between a pending application seeking stay and an actual order of stay. The former does not have the legal effect of the latter.
p. 9Pending application vs actual stay order
It would therefore not be proper for this Court to suspend proceedings merely because an application is pending before another court unless the circumstances demonstrate that such suspension is necessary to avoid injustice, conflicting orders, substantial prejudice or the frustration of the appellate process.
p. 13Threshold for staying proceedings
The mere existence of an application before the appellate court does not automatically justify a stay of proceedings before the trial court.
p. 9Nexus requirement

Issues in the judgment

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minor

Succession cause referred to inconsistently as 'Probate and Administration Cause No. 5 of 2013' and 'Succession Cause No. 5 of 2013'

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, "Benard Said Michael Mbarukh & 2 others v Rose Everlyn Tendwa", Case Analysis (2026). ELCLC E023 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6079/eng@2026-09-29

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