William Holden Wildlife Foundation v Mount Kenya Game Ranch Limited; Chief Land Registrar (Interested Party) (Environment and Land Case E028 of 2024) [2026] KEELC 1936 (KLR)

4. The Applicant posits that their intended appeal is arguable, has merit and an overwhelming chance of success. That it has been made in good faith without any delay, and if the matter proceeds for hearing, the appeal will be rendered nugatory. The Plaintifi/Respondent’s Replying Afidavit 5. Stefanie Powers, an oficer of the Plaintifi/Respondent, swore a replying afidavit and contending that the Defendant seeks a stay of proceedings in the same Court whose ruling it challenges, contrary to the established principle that stay is to be pursued in the appellate forum in the case of William Odhiambo Ramogi & 2 Others v. Attorney General & 3 others (2019) eKLR. 6. She deposed that the Defendant had not satisfied any of the mandatory conditions under Order 42 Rule 6(2) of the Civil Procedure Rules, further, that the Defendant did not annex the impugned ruling. 7. The Applicant contends that a stay would obstruct the Plaintifi's constitutional right to expeditious justice under Article 159(2)(b) of the Constitution and frustrate the overriding objective of the Court given by Section IA and IB of the Civil Procedure Act, and terms the present application as a strategy to prevent the main suit from being heard. 8. The Plaintifi/Respondent, a non-profit conservation foundation, states that they continue to sufier grave prejudice from the delay as they are denied the ability to secure their proprietary rights and to implement conservation and community programs on the land and urged the Court to prevent abuse of its process by engaging its inherent power under Section 3A of the Civil Procedure Act. The Applicant’s submissions 9. Counsel for the Applicant filed written submissions and relied on the cases of Edward Muchiri Ituma v Beatrice Wangigi & 9 others [2019] eKLR and Ezekiel Mule Musembi v H Young and Company (EA) Ltd [2019] eKLR and Order 42 Rule 6(1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, which vest this Court with discretionary power to stay proceedings where the interests of justice so require. 10. Counsel submitted that the gravamen of the Applicant’s case is that the learned Judge erred in law and in fact by holding that the subject matter of the suit does not fall within the Agreement for the Sale of Shares dated 11th December 2013. The Applicant contends that the Respondent’s claim, as pleaded in the plaint, is founded upon and arises directly from the said agreement, which contains a binding arbitration clause. Clause 10 of the agreement expressly provides that all disputes arising therefrom shall be referred to arbitration in accordance with the Arbitration Act, 1995, by a single arbitrator appointed by the Chairman of the Chartered Institute of Arbitrators (Kenya Branch). 11. The intended appeal challenges this Honourable Court’s jurisdiction to entertain the suit in light of the mandatory arbitration clause. The Applicant submits that the issue of jurisdiction and arbitrability is a fundamental question of law which goes to the root of the proceedings and is, by its nature, a bona fide and arguable ground of appeal. In this regard, the Applicant relies on the decision of the Court of Appeal in Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR, where it was held that an arguable appeal must not succeed, but one that raises at least a single non-frivolous issue deserving of judicial consideration. 12. It is further submitted that unless the proceedings herein are stayed, the intended appeal will be rendered nugatory. This is because the continuation of proceedings before a court whose jurisdiction is under challenge would result in an irreversible procedural course, thereby defeating the substratum of the appeal. The Applicant invokes the long-settled principle enunciated by the Court of Appeal https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1936/eng@2026-02-26 2

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in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1, that jurisdiction is everything, and that a court must down its tools the moment it forms the opinion that it lacks jurisdiction. 13. The Applicant submits that the application was filed without delay. The ruling sought to be appealed against was delivered on 25th July 2025, and the present application was filed on 28th August 2025, a period of approximately thirty-four (34) days. The Applicant contends that this delay is reasonable, particularly given that the Applicant is a corporate entity which required time to issue instructions, and further noting that no intervening steps were taken by the Respondent during the said period. No prejudice has therefore been occasioned to the Respondent. 14. The Applicant further submits that it has established suficient cause to warrant the grant of a stay of proceedings. The intended appeal raises a serious jurisdictional question which ought to be determined before the suit can proceed further. Granting a stay will prevent wastage of judicial time, avoid parallel proceedings, and ensure that the appellate process is not rendered an academic exercise. Conversely, no prejudice will be sufiered by the Respondent, as the suit will remain available for hearing on the merits should the intended appeal fail. 15. In the premises, the Applicant submits that it has satisfied all the principles governing the grant of stay of proceedings pending appeal, namely: the existence of an arguable appeal, the absence of unreasonable delay, and the necessity of stay in the interests of justice. The Applicant therefore prays that the proceedings herein be stayed pending the hearing and determination of the intended appeal, and that the court file be released to the registry for the issuance of certified copies of the proceedings, ruling, and orders to facilitate the expeditious filing of the appeal. 16. Top of Form 17. Bottom of Form The Plaintifi/Respondent’s written submissions 18. Counsel for Plaintifi/Respondent filed written submissions and supplementary submissions to oppose the Defendant/Applicant's Notice of Motion dated 27th August 2025, stating that the application is misconceived, unmeritorious and amounts to an abuse of the court process. 19. He further submitted that while this Honourable Court has residual jurisdiction under Order 42 rule 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act to entertain applications for stay of proceedings, such relief is drastic and exceptional and must be granted sparingly. The applicable principles require, inter alia, the existence of a properly instituted and arguable appeal, demonstration of substantial loss, provision of security, and a careful balancing of prejudice and public interest. 20. In their view, the Defendant has failed to demonstrate that there is any competent or pending appeal before the Court of Appeal. The application is premised merely on an "intended appeal". No memorandum or draft memorandum of appeal, record of appeal, Court of Appeal reference number, or application under rule 5(2)(b) of the Court of Appeal Rules has been exhibited. The Notice of Appeal relied upon is itself doubtful, having been dated before the ruling it purports to challenge. A mere intention to appeal is insuficient to justify a stay of proceedings. 21. Counsel also claims that the Defendant has failed to establish that the intended appeal is arguable. The ruling of 25th July 2025 comprehensively addressed the arbitration issue and correctly found that the 11th December 2013 agreement was a share sale agreement, that L.R. 10776/3 was expressly excluded therefrom, and that the Plaintifi was not bound by the arbitration clause. The Defendant has not identified any specific error of law or fact in that reasoning. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1936/eng@2026-02-26 3

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22. Further, no substantial loss has been demonstrated. The Defendant does not face execution, eviction or any irreversible prejudice. Being required to file a defence and participate in the hearing of the suit is not a substantial loss but the ordinary consequence of litigation. Any prejudice alleged is speculative and compensable. 23. The Defendant has further failed to comply with the mandatory requirement of security under Order 42 rule 6(2). No ofier or proposal for security has been made, underscoring the tactical nature of the application. 24. On the question of prejudice, the balance tilts heavily in favour of the Plaintifi. The Plaintifi has occupied and managed the suit land for decades for the purpose of wildlife conservation. The Defendant's continued refusal to surrender the mother title has prevented perfection of title, disrupted conservation activities, undermined donor confidence and exposed the Plaintifi to ongoing institutional risk. Further delay ofiends Articles 40, 42, 48, 50 and 159 of the Constitution. 25. The Defendant’s conduct discloses a pattern of delay and obstruction through serial interlocutory applications following the dismissal of its arbitration application. Its defence raises no serious triable issues and consists largely of general denials and technical objections. The present application is, therefore, a classic abuse of the court process. 26. In the circumstances, Counsel submitted that the Defendant has failed to meet the threshold for the grant of a stay of proceedings. The application does not satisfy the requirements under Order 42 rule 6, the Global Tours principles, or subsequent binding authorities. 27. The Plaintifi therefore prays that the Notice of Motion dated 27th August 2025 be dismissed with costs and that the suit be allowed to proceed to hearing without further delay. 28. Counsel for the Plaintifi/Respondent relied on the cases of Re Global Tours & Travel Ltd (HC Winding Up Cause No. 43 of 2000), In Kenya Wildlife Service v James Mutembei [2019] eKLR and William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others [2019] eKLR Analysis and Determination 29. The Court has considered the Notice of Motion dated August, 2025, the opposition thereto and submissions by Counsel for the parties. The Applicant seeks a stay of proceedings pending the hearing and determination of the intended appeal to the Court of Appeal, against the ruling delivered by Hon. Justice Mugo Kamau on 25th July 2025. 30. Stay of proceedings is provided for by Order 42 Rule 6 of the Civil Procedure Rules (2010), which provides that: 1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for suficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) an order for stay of execution shall be made under subrule (1) unless— https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1936/eng@2026-02-26 4

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31. (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. (3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. (4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. (5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. Counsel for the Applicant relied on the holding in the case of Ezekiel Mule Musembi vs. H. Young and Company (E.A) Limited (2019) eKLR, where the court held: “ This jurisdiction is meant to avoid a waste of valuable judicial time: prevent the court from duplication of efiorts, and prevent multiplicity of suits and applications being filed and where, if the stay is not granted, and defendant were to succeed it would have rendered the appeal nugatory. In such applications the court aims at ensuring that the object of the application is not rendered nugatory and that substantial loss and irreparable harm is not sufiered by the applicant once the Plaintifi proceeds with the suit and the appeal succeeds. Obviously, the decision whether or not to grant stay of proceedings being discretionary, the application must be made without unreasonable delay.” 32. Stay of proceedings is difierent from stay of execution, as it has a higher threshold for grant in my opinion. In the case of William Odhiambo Ramogi & 2 Others v. Attorney General & 3 others (2019) eKLR, cited and relied upon by Counsel for the Plaintifi, the Court established the criteria for stay of proceedings, enumerated as follows: “ a. First, there must be an appeal pending before the higher Court; b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed, and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to delay trial inordinately, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly. c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted; e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1936/eng@2026-02-26 5

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having the case concluded and all arising grievances taken up on a single appeal; and f. 31. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.” On the first requirement that there must be an appeal pending before the higher Court, the Plaintifi Respondent argues that there is no appeal pending before the Court of Appeal for the reason that there is no Memorandum of Appeal, Court of Appeal case number and no letter bespeaking the proceedings has been attached. I wish to confirm that the Court record shows that a Notice of Appeal dated 1st July 2025 was filed on 11th August 2025. Order 42 Rule 6 (5) provides that; “ For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.” 33. Therefore, an appeal to the Court of Appeal is deemed as having been filed if it complies with the Rules of that Court. Rule 77 of the Court of Appeal Rules provides that; (1) A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court. (2) Each notice under sub-rule (1) shall, subject to rules 84 and 97, be lodged within fourteen days after the date of the decision against the decision for which the appeal is lodged. 32. However, the Court has noted that the ruling the Applicant wishes to challenge was issued on 25th July 2025. The Applicant filed a Notice of Appeal before this court on 11th August 2025, which is three (3) days outside of the time allowed under the Court of Appeal Rules. Computation of time under Rule 3 of the Court of Appeal Rules shows that the 14 days for filing the Notice of Appeal expired on 8th August 2025. The said Rule states that; Any period of time fixed by these Rules or by any decision of the Court for doing any act shall be computed in accordance with the following provisions— (a) the period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day in which the event happens or that act or thing is done; (b) if the last day of the period is a Sunday or a public holiday (in this rule referred to as "excluded days"), the period shall include the next following day, not being an excluded day; (c) where any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day; (d) where any act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of time; and (e) unless the Court otherwise directs, the period of the Christmas recess shall not be reckoned in the computation of time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1936/eng@2026-02-26 6

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34. From the foregoing, there being no order for extention of time for filing the Notice of Appeal, the Court finds that the Application herein fails on the first limb; on the ground that there is no competent appeal pending before the Court of Appeal. 35. The Court is also under an obligation to consider whether the Applicant has demonstrated that the appeal raises substantial questions to be determined or is otherwise arguable. The Applicant conceded that it had not filed the appeal, stating that it had been awaiting the copies of typed proceedings to file the Memorandum of Appeal. The Court notes that the Applicant did indeed file with the court the letter dated 1st August 2025, bespeaking proceedings. The said typed proceedings are in the court file and were certified on the 26th of July 2025 by the Deputy Registrar of this Court, only a day after the impugned ruling was delivered. The Applicant's excuse for not having filed the Record of Appeal in time is therefore not plausible. 36. In further support of the claim that the appeal raises substantial questions and is arguable, the Applicant stated that this Court arrived at an erroneous decision in finding that the Defendant’s application dated 28th January 2025 was incapable of being granted since the subject matter of the suit, LR 10776/3, does not form part of the contract dated 11th December 2013. The applicant faulted the Judge for failing to consider that among the prayers the Plaintifi claims against the Defendant in the plaint relates to Land Reference Number 10766/3, which stems from the agreement dated 11th December 2013, and there is no other contract relating to this parcel. The Applicant claims that the Judge erred in his findings that the subject matter of the suit, L.R. Number 10776/3, does not form part of the contract dated 11th December 2013. 37. The Court has looked at the pleadings filed by the Plaintifi, and it is clear that the land subject matter of this suit is I.R 23624; Land Reference Number 10766/3. The contract dated 11th December 2013 provides for arbitration at paragraph 10. However, the Hon Justice Mugo Kamau in his ruling dated 25th July 2025 stated that the said agreement was for the sale of shares in Mount Kenya Game Ranch Limited, the Defendant herein and for the sale and transfer of the suit property. He further stated that the agreement lists the immovable properties of the Defendant at part 1 of the second schedule, excluding the suit property herein in the introduction, stating that the said property is in the process of registration in favour of the Plaintifi herein. He concluded that the suit property herein is not the subject of the agreement that the Applicant wishes to refer to Arbitration. 37. The court has looked at the said agreement dated 11th December 2013 and, without purporting to go into the merits of the intended appeal, if any, noted that the Plaintifi herein, William Holden Wildlife Foundation, is not a party to the agreement. Further, concerning the suit parcel of land, Paragraph 3 of the citation to the agreement states as follows; “ The company is the beneficial owner free from any mortgages, charges, liens or other encumbrances or adverse interest of the immovable properties (hereinafter called “the property”) more particularly described in Part 1 of the second schedule hereto, excluding Land Reference Number 10766/3, which is in the process of registration in favour of William Holden Wildlife Foundation." 38. In light of the above provision in the agreement that the Applicant is relying on in support of its reference of this dispute to arbitration, and in light of the Applicant's stated challenge to the decision of 25th July 2025, the Court is not persuaded that the intended appeal raises substantial questions to be determined or is otherwise arguable. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1936/eng@2026-02-26 7

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39 The Court is further not satisfied that the appeal, if any, will be rendered nugatory if the order sought is not granted, since the Court of Appeal would have the option to set aside this Court’s proceedings and direct that the matter be referred to arbitration. 39. The Court is indeed satisfied that granting this application would not be in the interests of justice and will cause delay in the resolution of the dispute herein. 41. The upshot of the above is that the court finds the application dated 27th August 2025 lacks merit and is dismissed with costs to the Plaintifi/Respondent. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF FEBRUARY, 2026. HON. L. G. KIMANI JUDGE ENVIRONMENT AND LAND COURT In the presence of:Brian: Court Assistant. Ms Ochieng holding brief for Ataka, for the Applicants. Mr Momanyi holding brief for Adede, for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1936/eng@2026-02-26 8

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