Busienei & 30 others v Kipkeibon Estates Limited (Environment and Land Case 22 of 2022) [2025] KEELC 7497 (KLR)

JOSEPH NYOKOSEI .......................................................................... 19TH PLAINTIFF KIPROTICH A. SIROREI ................................................................ 20TH PLAINTIFF KIPKEMBOI RONO .......................................................................... 21ST PLAINTIFF LAWRENCE SINGOEI ...................................................................... 22ND PLAINTIFF CHRISTINE SAMBU ........................................................................ 23RD PLAINTIFF JOHN ROP ......................................................................................... 24TH PLAINTIFF JOSEPH SAWE .................................................................................... 25TH PLAINTIFF CHEBUSIO CHEMAGET .................................................................. 26TH PLAINTIFF JEROTICH K. KOSGEI ..................................................................... 27TH PLAINTIFF PAUL MELLY ...................................................................................... 28TH PLAINTIFF PHILIP NGELECHEI ........................................................................ 29TH PLAINTIFF JOSEPH K. TARUS ............................................................................ 30TH PLAINTIFF FRED KEMBOI ................................................................................... 31ST PLAINTIFF AND KIPKEIBON ESTATES LIMITED ........................................................ DEFENDANT RULING 1. 2. 3. In the Notice of Motion dated 26th May 2025 under, inter alia, Article 48 of the Constitution of Kenya 2010 and section 1A of the Civil Procedure Act Chapter 21 Laws of Kenya, the plaintifis/applicants through Bitok and Sambu Advocates, are seeking the orders infra; a) That this Honourable Court be pleased to stay further proceedings herein pending the hearing and determination of the intended appeal before the Court of Appeal. b) That the costs of this application be provided for. The application is founded upon the applicants’ afidavit of fifteen paragraphs sworn on even date and the grounds, inter alia; a) That Ruling was delivered in this case on 19th February 2025 where the Court dismissed the application dated 14th November, 2024. b) That the Applicants were aggrieved by the said decision and lodged a Notice of Appeal dated 4th March 2025 c) That meanwhile the Court is set to make a decision on who bears the costs of the suit. d) That the Applicants are keen on seeing their case heard viva voce and have been appealed against the decision of this Honourable Court seeking to reopen the case of hearing on the merits. The respondent through Kosgey Masese Advocates filed a replying afidavit sworn on 10th June 2025 by Wambui Kosgey, a director of the respondent and averred in part that the suit was initiated in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7497/eng@2025-10-29 2

page 2 of 4

year by an originating summons dated 12th May 2008 for adverse possession, the matter was referred to Court Annexed Mediation and the report thereof adopted by the court. That whereas the applicants have the right to pursue their appeal, the case has been pending in court for 17 years yet litigation has to come to an end. 4. By the submissions dated 25th July 2025, learned counsel for the applicants referred to the application including the orders sought therein, the grounds of the application, the replying afidavit and was of the view that the threshold for the stay sought has been met hence, the application be allowed accordingly. To fortify the submissions, counsel cited the cases of Safaricom Ltd-vs-Josenga Company Ltd & 4 others (2021) eKLR and Turbo Highway Eldoret Ltd-vs-Muniu (2022) eKLR. 5. In the submissions dated 10th June 2025, learned counsel for the respondent gave an overview of the matter and framed an issue for determination namely whether the application has merit. Reference was made to Order 42 Rule 6 (2) of the Civil Procedure Rules 2010 on stay in case of appeal, the case of Kaptien Farmers Ltd & 17 others-vs-Cheptililik Farmers’ Cooperative Society Ltd (2023) eKLR and Access Bank Kenya Ltd PLC-vs-Mengich & another (2024) eKLR. In that regard, counsel submitted that the application is merited and it be allowed accordingly. 6. In the foregone, I proceed to determine whether the application has merit and the orders to issue for the ends of justice. 7. The applicants asserted that by the Notice of appeal dated 4th March 2025, they are dissatisfied with the entire ruling delivered on the 19th day of February, 2025 herein hence, intends to appeal to the Court of Appeal at Eldoret. Order 42 Rule 6 (4) of the Civil Procedure Rules 2010 stipulates; For the purposes of this rule an appeal to the Court of Appeal is deemed to have been filed when under the Rules of the Court a notice of appeal has been given. 8. At paragraph 21 of the replying afidavit, the respondent averred in part; ‘That the applicants are well within their right to pursue their appeal......’ 9. In the case of Butt-vs-Rent Restriction Tribunal (1979) eKLR, the Court of Appeal remarked; ‘....and the appellant has an undoubted right of appeal.....’ 10. The character of the subject matter and the obtaining circumstances favour the applicants to pursue their prospective appeal to the Court of Appeal as a fair opportunity to be heard is a fundamental principle of justice; see Halsbury’s Laws of England 5th Edition 2010 Volume 61 paragraph 639. 11. It is established law that the court has its inherent jurisdiction to safeguard the character and integrity of the subject matter of appeal, pending the resolution of the contested issues; See Board of Governors, Moi High School Kabarak & another-vs-Malcom Bell & 2 others {2013} KESC 12 (KLR). 12. Thus, there is merit in the application. I allow the same in terms of stay of further proceedings sought therein as stated in paragraph 1 (a) hereinabove. The applicants shall formally file an appeal to the Court of Appeal and serve the same within forty-five (45) days from this date. 13. The costs of the application shall abide the outcome of the intended appeal. 14. It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 29TH OCTOBER 2025 HON G M A ONGONDO https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7497/eng@2025-10-29 3

page 3 of 4

JUDGE In the presence of; Mr Sambu learned counsel for the Applicants/Plaintifis Ms Tabut instructed by Mr Kosgey learned counsel for the Respondent Kariuki N, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7497/eng@2025-10-29 4

page 4 of 4