Muthithi Investment Limited v Lucy Igoki Rutere & 34 Others, Fuelex Limited, Riverbank Limited, Kandimugwa Limited, Spineroad Gardens Limited & Nairobi City County

Investment Limited & others pending the hearing and determination of the appeal. The grounds in support of the application are stated on the face of the Page 2 of 9

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application. The applicant avers that it was aggrieved by the Ruling delivered by the Environment and Land Court (ELC) on 27th March, 2025. According to the applicant, the said Ruling enjoined the 6th respondent as a party to the suit and further allowed the said respondent to cross petition in respect of the ownership claim of LR No. 23917 (the suit property). 2. The applicant asserts that the enjoining of the 6 th respondent in the suit by the ELC would in effect revive the 6 th respondent’s claim that had been compromised by consent of the parties on 8th February, 2000, more than 26 years ago. The applicant states that the trial court had, in a ruling delivered on 24 th November, 2022, dismissed the 6th respondent’s application seeking to reopen Nairobi HCCC No. 5 of 2021 (Formerly HCCC No. 457 OF 1999). Nairobi City Council vs Commissioner of Lands & Muthithi Investments Limited. In particular, the Court held that no fraud was established against Muthithi Investment Limited and further that the claim by the 6 th respondent was time barred since the claim was made after 21 years from the time the suit was compromised by consent. The applicant therefore insisted that the attempt by the 6 th respondent to Page 3 of 9

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re-litigate the issue regarding the ownership of the suit property is res judicata. The Page 4 of 9

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application is supported by the annexed affidavit of Peter Thirima Ndungu, the project manager of the applicant. 3. The application is opposed. Lucy Igoki Rutere, one of the respondents, swore a replying affidavit in opposition to the application. She was of the view that the application had been made in bad faith and against laid down legal principles and seeks to perpetrate a continuation of an illegality. She deponed that the ELC made an order of status quo which the applicant has continued to breach by offering the subdivided portions of the suit property for sale. She points out that the relevant authorities have refused to enforce the said order of the court thus continuing their assistance of the applicant in perpetrating an illegality. 4. She deponed that the ELC justifiably ordered the enjoining of the 6th respondent as a party to the suit because the 6 th respondent is a necessary party to enable the just determination of the ownership of the suit property. The respondent is of the view that the present application is meant to forestall investigation and scrutiny of the root of the illegal title the applicant holds and unnecessary prolong the just determination of the dispute. She is apprehensive that by the Page 5 of 9

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time the actual dispute is heard and determined, there will be nothing to benefit from as the applicant Page 6 of 9

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will have sold out the subdivided portions of the suit property to third parties. She urged the Court to disallow the application. 5. The 6th respondent, through a replying affidavit sworn by its advocate J. Harrison Kinyanjui opposed the application. He deponed that the applicant has not met the threshold for this Court to grant the order of stay of proceedings craved for in the application. The 6th respondent contends that the applicant will suffer no prejudice if the issues in dispute are heard and determined on their merits by the ELC. In particular, he pointed out that the decision to enjoin the 6 th respondent as a party to the suit was proposed by the petitioners therein and not by the 6th respondent. He deponed that the presence of the 6th respondent in the suit was necessary to enable the ELC deal with all the issues related to the ownership of the suit property once and for all and save parties costs and obviate wastage of judicial time. In essence, the 6th respondent’s position is that the ELC acted within it’s mandate when it made the order enjoining the 6th respondent to the suit and therefore there was no legal basis of this Court to stay proceedings herein. 6. The 5th respondent also opposed the application. Wilfred Shimoli Page 7 of 9

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Shivachi swore a replying affidavit in opposition to the Page 8 of 9

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application. He supported the reasons put forward by the other respondents in opposition to the application. In particular, he stated that the applicant has failed to establish sufficient grounds to enable this Court exercise its favour as provided under Rule 5(2)(b) of the Court of Appeal Rules. He deponed that the issue in regards to whether the petition is res judicata had been considered by the ELC and a comprehensive Ruling delivered. He maintained that the application has only one purpose; to prevent judicial scrutiny of the root, legality and constitutionality of the applicant’s title to the suit property. He urged the Court to dismiss the application as it lacks merit. 7. Prior to the plenary hearing of the application, the applicant, 6th respondent and interested party filed written submissions in support of their respective positions. During plenary hearing, this Court heard oral highlights the submissions by Mr. Ochieng Oduol SC for the applicant, Mr. Muraya, learned counsel for the 1st respondent and 34 others, Mr. Munyororo, learned counsel for the 2nd, 3rd and 5th repondents, Mr. Kinyanjui, learned counsel for the 6th respondent and Mr. Kenjo for the 5th to 8th interested parties. Page 9 of 9

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8. This Court has carefully considered the facts of the application, and the submissions by all the parties and the law. Parties appreciate that in considering this application this Court is exercising judicial discretion which is guided by mainly two principles; whether the applicant established that he has an arguable appeal, and secondly, whether the intended appeal will be rendered nugatory if the order is not granted. 9. As regards specifically the order of stay of proceedings, this Court in Kassam Ramji & Sons Ltd v. Athumani & another (suing for and on behalf of the Wamwayundo Clan & 6 others [2024] KECA 563(KLR) held thus: “We bear in mind what this Court stated in Lucy Njoki Waithaka v. Tribunal Appointed to Investigate the Conduct of the Honourable Lady Justice Lucy Njoki Waithaka & Judicial Service Commission; Kenya Magistrates & Judges Association (Interested party) [2020] eKLR that: “We note that stay of proceedings is a serious grave and fundamental judicial action which interferes with the right of any party to conduct litigation (See Francis N. Githiari v. Njema Limited [2006] eKLR). It impinges on the right of access to Justice, right to be heard without delay and the right to a fair trial. While addressing the issue of stay of proceedings in the Page 10 of 9

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persuasive case of Global Tours & Travelers Limited (Supra), Ringera J (as he then was stated thus: Page 11 of 9

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“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, prima facie merits of the intended appeal in the sense whether or not the intended appeal will probably succeed or not but whether it is an arguable are, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 10. In the present application, the applicant argued that the ELC erred in making the order that the 6th respondent be enjoined in the suit in circumstances that did not take into consideration the fact that the suit between the applicant and the 6 th respondent in respect of the suit property had been compromised by consent more than 21 years ago, and further that, a court of concurrent jurisdiction as the ELC court had made determination that any claim by the 6th respondent in respect of the suit property was time barred. The respondents, save for the 3rd and 5th respondents, and the interested parties Page 12 of 9

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opposed the application on the grounds that the applicant was using dilatory tactics to prevent the ELC from Page 13 of 9

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inquiring into the root of the title in respect of the suit property that the applicant currently holds. The said respondents and the interested parties insist that if the order craved for was granted, it would stall the just determination of the case before the ELC. 11. We have considered the rival arguments and the facts in support thereof in respect to the question whether the applicant has established that it has an arguable appeal. We are of the view that the fact that the applicant’s contention, that there were previous proceedings related to the suit property between the applicant and the 6 th respondent in which the 6th respondent’s claim was compromised by consent is arguable. The other arguable ground is the assertion by the applicant that the 6th respondent is attempting to revive a claim over the suit property in circumstances that makes such a claim res-judicata. We are therefore satisfied that the applicant has established that it has an arguable appeal. 12. As regards whether the intended appeal will be rendered nugatory if the order of stay of proceedings craved for is not granted, we are satisfied that the applicant met the higher threshold set for the grant of stay of proceedings. The Page 14 of 9

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respondents and the interested party will have the opportunity to put forward Page 15 of 9

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their case in the appeal. The interests of justice demands that the issue of whether the 6th respondent can be allowed to relitigate an issue that was closed long time ago be resolved on appeal without further proceedings taking place before the ELC. 13. The application has merit and is hereby allowed. An order staying proceedings before the ELC is hereby granted pending the hearing and determination of the Appeal. The applicant shall have the costs of the application. Dated and delivered at Nairobi this 25 th day of September, 2026. L. KIMARU ........................... ... JUDGE OF APPEAL L. NJUGUNA .......................... ... JUDGE OF APPEAL DR. J.O. OKELLO ......................... ... JUDGE OF APPEAL I certify that this is a true copy of Page 16 of 9

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original. Signed DEPUTY REGISTRAR. Page 17 of 9

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