Musyimi (Sued in his own Capacity and also as the Administrator/Personal Representative of the Estate of Muoti Musyimi Ndolo (Deceased)) & another v Kaumbulu (Environment and Land Appeal E040 of 2023) [2026] KEELC 176 (KLR)

2. The motion is supported by the grounds therein as well as the afidavit sworn on the instant date by the 1st appellant. Principally, he states that the appellants are dissatisfied with the judgment delivered on 24/06/2025 and intend to appeal against the entire decision. The second appellant bought the suit property (“Kangundo/Muisuni/2027”) on 04/08/2016 and has lived and worked there for over eight years. During this time, the second appellant has farmed the land and made significant investments in agricultural improvements. The appellants are prepared to provide any security the court may require to ensure compliance with the court’s orders. If the court does not stay the execution of the decision, the second appellant will sufier substantial loss. In support of the assertions, photographs of farm activities were made available to this court. 3. The motion is strongly opposed by a replying afidavit sworn by the respondent on 20/09/2025. In brief, she asserts that after the court judgment, she took possession of and commenced using the suit property she had purchased. She contends that, despite a court order prohibiting actions on the land, the appellants unlawfully subdivided and transferred the suit property, thereby violating the court's explicit orders. She implores the court to cancel these transactions and reinstate the suit property to its original condition, citing the appellants' contempt of court. Furthermore, she maintains that the appellants have not provided the required security for costs and that she remains in possession of the suit property. 4. Accordingly, when parties appeared before this court, they were directed to canvass the motion through written submissions, and the law firm of Mss Nduva Kitonga & Co. Advocates for the appellants and Nzuki Nzioka & Co. Advocates for the respondent duly complied. Thus, having carefully considered the motion, its grounds, afidavits, and written submissions, including the provisions of law and judicial precedents relied upon, the singular issue for determination is whether the appellants are deserving of the orders sought. 5. Concerning the applicable law and jurisprudence, the instant motion has been brought within the auspices of Order 42 Rule 6 of the Civil Procedure Rules and the long-standing principles therein are that an applicant has to demonstrate that the motion is brought without undue delay, demonstrate to the court’s satisfaction that substantial loss may result to her unless stay of execution is ordered and award such security as the court orders for the due performance of such decree or order as may ultimately be binding on her has been given. Furthermore, a notice of appeal against this court's decision must have been filed within the stipulated timelines. 6. Additionally, it is pertinent to observe that when entertaining motions of this nature, this court exercises prudent discretion, guided by the law, evidence, and reason. Kenya’s jurisprudential legal principles concerning the stay of execution pending appeal are numerous. See Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR), M/S Portreitz Maternity v James Karanga Kabia Civil Appeal No. 63 of 1997 and Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR). 7. Apart from the principles set out in Order 42 Rule 6 of the Civil Procedure Rules, the court, when deliberating on a motion of this nature, must take into account the overriding objective of the courtas stipulated in Sections 1A and 1B of the Civil Procedure Act, which include the just and equitable determination of proceedings, the eficient disposal of the court's business, the prudent utilisation of available judicial and administrative resources, as well as the prompt resolution of proceedings and all other matters before the court, at a cost that is reasonable and afiordable for the respective parties. 8. Moreover, it is pertinent that, as provided for under Section 3A of the Civil Procedure Act, which articulates that nothing within this Act limits or afiects the court's inherent authority to issue necessary https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/176/eng@2026-01-27 2

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orders to achieve justice or to prevent abuse of court processes, courts are called upon to protect themselves from such acts. 9. In the instant case, the issues of disobedience of court orders and abuse of court process have been addressed in the replying afidavit as well as in the majority of the respondent’s submissions. It is regrettable that, despite the respondent's significant issues being raised, the appellant has chosen to ignore them, and consequently, these allegations remain uncontested. 10. Pointedly, an abuse of court process is any departure from established good order that significantly deviates from reasonable use of the court process; such abuse occurs when an individual makes excessive, improper, or contradictory use of court procedures, contravening their natural legal principles. Therefore, the court adopts the dicta in the Court of Appeal decision of Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR), which stated thus on abuse of court process: “ There is no greater duty for the court than to ensure that it maintains the integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by, amongst other measures, stopping litigations brought for ulterior and extraneous considerations. The courts, litigants and counsel are enjoined by both the Constitution and the law to assist the court to further the overriding objective for the just determination of the proceedings; the eficient disposal of the business of the court; the eficient use of the available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the court, at a cost afiordable by the parties.” 11. Accordingly, having reviewed the record and the documents submitted by the respondent, it appears that immediately after filing the suit in the lower court on 12/04/2021, the respondent filed an application on the same day requesting injunctive relief. Upon hearing her, the lower court granted the following orders on the same date: “ That a temporary injunction be and is hereby issued restraining the defendants whether by themselves or their agents, employees or servants from entering, cultivating, subdividing, construction on, trespassing on, cultivating, interfering, residing, selling, subletting, transferring, charging, alienating or in any way dealing with the plaintifi's portion of land in the property known as Kangundo/Muisuni/2027 pending the hearing and determination of this application.” 12. It is uncertain whether the lower court granted the order of injunction pending the hearing and determination of the suit, as the respondent has not tendered any subsequent orders that would clarify the outcome of the inter parties hearing of this application. Consequently, the court is constrained from establishing whether the appellants were in contempt of court orders. 13. Nevertheless, notwithstanding the pending case before the lower court, the appellants, in an attempt to undermine the respondent’s claim, caused the subdivision of the suit property into two portions on 21/06/2022, which was during the pendency of the lower court suit. The subdivisions are identified as Kangundo/Muisuni/3788 and 3789, with the former registered in the name of the 1st appellant, and the latter jointly registered in the names of the 2nd appellant and Joyce Dorothy Auma Kinyolo. In this court’s view, these actions constituted an abuse of the court process and a breach of the doctrine of lis pendens, which is the jurisdictional power or control a court acquires over property while a legal https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/176/eng@2026-01-27 3

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action is pending. Its purpose is highlighted in the Court of Appeal decision of Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] KECA 911 (KLR), thus: Lis pendens is a common law principle that was enacted into statute by section 52 Indian Transfer of Property Act (ITPA)-now repealed. While addressing the purpose of the principle of lis pendens, Turner L. J, in Bellamy vs Sabine [1857] 1 De J 566 held as follows:It is a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this jurisdiction, that it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendent lite were permitted to prevail. The Plaintifi would be liable in every case to be defeated by the Defendants alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to defeat by the same course of proceedings.” 14. Hence, the court perceives that the appellants have intentionally and disingenuously limited the respondent's ability to enjoy the judgments favourably obtained by her in this court and in the lower court. Currently, she is impeded from executing the judgment of this court unless and until the lower court, acting as the trial court, issues directives to revert the subdivided parcels to the original mother parcel (suit property). The court is not unaware that the respondent will incur substantial expenses in seeking an order of reversion from the lower court and in executing the reversion process in accordance with the requirements of the relevant governmental entities. 15. This entire process would have been unnecessary had the appellants not callously, with ill motives and with the intention to defeat justice, subdivided the suit property. The appellants intended to steal a match against the respondent; nonetheless, their actions have now caught up with them. 16. It would therefore be unreasonable for this court to grant the appellants' orders in their favour and permit them to enjoy the subdivisions they obtained by circumventing the court process. This court concurs with the respondent that it is obliged to safeguard itself against the actions of the appellants and to decline the orders sought. Accordingly, this court finds that the appellants have abused the court process and are undeserving of the orders sought. 17. Ultimately, the notice of motion dated 1/07/2025 is hereby dismissed. As it is well-established law that costs follow the event, the respondent is awarded the costs of the motion. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 27TH DAY OF JANUARY, 2026. HON. A. Y. KOROSS JUDGE 27.01.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant Mr. Kitanga for the Appellant. Mr. Nzioka for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/176/eng@2026-01-27 4

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