Too (Sued in her Capacity of and as the Representative of the Estate of Gilbert Kinyor (Deceased)) & another v Mugun (Suing as the legal representative of the Estate of Makaye Mugun Makai arap Mugun Mugun) & another (Environment and Land Appeal E002 of 2026) [2026] KEELC 2438 (KLR)

d. That this Honourable Court be pleased to re-open the defence case and grant the Defendant an opportunity to tender its evidence be in the cause e. That costs of this application be in the cause. 2. The anchorage of the application are the grounds set out the face of the same alongside the supporting afidavit in entirety. Briefiy, the applicants lament that their defence case was closed on 14th January 2026 by the Chief Magistrate’s Court in the suit where they are the defendant and the Applicants/ Appellants are appealing against the said ruling. That the closure of the defence case was procedurally and substantially unjust, as the Appellants were denied a reasonable opportunity to present their case. That it is in the interest of justice that the orders sought herein be granted to allow the matter to be determined on merit. 3. The respondents through their counsel were properly served as revealed in the afidavit of service sworn on 11th March 2026. 4. Besides, the respondents who had an option to respond to the application failed to do so; see Festus Ogada vs Hans Mollins (2009) eKLR. 5. Ms. Nekesa learned counsel for the appellants/applicants urged the court to allow the application in terms of prayers (b) (c) and (d) therein. 6. In that regard, the duty of this court at this stage is to determine whether the appellants/applicants have established that they deserve the prayers in the application. 7. The applicants’ assertion is that their defence case was closed by the Chief Magistrates’ court at Kapsabet thus, provoking the instant appeal. Apart from the stay of proceedings prayer, the other orders in the application are captured in the memorandum of appeal, too, calling for hearing and determination of the appeal on merit. 8. There are discernible arguable issues inclusive of fair trial in the memorandum of appeal herein. It is trite law that in such an application, the applicant must show that the appeal or intended appeal is arguable or not frivolous and that unless the order of stay sought is not granted, the success of the appeal or intended appeal will be rendered nugatory; see Somak Travels –vs- Gladys Aganyo (2016) KECA 669 (KLR). 9. Plainly, the applicants have the right to access justice and the unlimited right to be heard in this appeal pursuant to Articles 48, 50 (1) and 25 (c) of the Constitution of Kenya 2010; see also James Kanyiita Nderitu –vs- Marios Philotas Ghikas and another (2016) eKLR. 10. Further, this court subscribes to the decision in the case of Butt –vs- Rent Restriction Tribunal (1979) KECA 22 (KLR) where the court of Appeal observed thus; ‘……and the appellant has an undoubted right of appeal’ 11. Moreover, the applicants’ prayers seek to balance the competing interests herein and the court is persuaded to make orders that best suit the interests of justice. 12. In the premises, I find the application meritorious and the same is hereby disposed of thus; a. The application is allowed in terms of the prayer for stay of proceedings sought therein. b. The rest of the orders inclusive of costs sought in the application, to abide the outcome of this appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2438/eng@2026-03-18 2

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13. It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 18TH DAY OF MARCH 2026. HON. G.M.A. ONG’ONDO JUDGE In the presence of; 1. Ms. Nekesa Bernice instructed by Oyaro learned counsel for the appellants/applicants. 2. Walter, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2438/eng@2026-03-18 3

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