Njaga & another v Makogola (Environment and Land Appeal E017 of 2026) [2026] KEELC 5359 (KLR)

Preliminary Objection contended that the Respondent's suit, founded on a transaction said to date back to 1983. The contention in it was that it was filed outside the time prescribed by the Limitation of Actions Act hence was incompetent. 3. Aggrieved, the Applicants lodged the present Appeal and, contemporaneously, the instant Application. The matter before the trial court was last listed for pre-trial directions on 6th August 2026. 4. In the instant Notice of Motion, the Applicants sought, in summary: a) …Spent.; b) A temporary stay of proceedings and of the costs awarded in Rongo ELC No. 39 of 2019, pending the hearing of the Application; c) In the alternative, a conservatory order staying proceedings in Rongo ELC No. 39 of 2019 pending the hearing and determination of the appeal, the appeal raising fundamental questions of law. 5. The Application was supported by the Affidavits of the 1 st and 2nd Applicants both sworn on 21 st July 2026. The Court invited the parties, vide its Directions dated 24 th July 2026 to address it as a preliminary issue on the competency of the application, based on compliance with Order 42 Rule 6 of the Civil Procedure Rules. Also, the Respondent opposed the application by a Notice of Preliminary Objection dated RULING ELCLA E017 OF 2026B 2

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27th July 2026. Its content mirrored the preliminary issue which the court sought to be addressed on. The parties thereafter submitted on it orally. The Court has considered the submissions together with the law and the record. The Respondent's Case 6. The Respondent opposed the instant Application principally through a Notice of Preliminary Objection dated 27 th July 2026. He brought it under Order 2 Rule 9 of the Civil Procedure Rules. They contended that the Application offended the mandatory provisions of Order 8 Rule 1, Order 42 Rules 2 and 6, and Order 43 Rule 1(2) of the Civil Procedure Rules, 2010. Further, that by extension, the appeal itself ought a to be struck out or dismissed for want of statutory compliance. Applicants' Submissions 7. The learned counsel for the Applicants conceded that no Application for stay of proceedings had been filed before the trial court. However, he submitted that the omission did not oust the jurisdiction of this Court to entertain the present application. He relied on the decisions in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) and Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR). He submitted further that the Memorandum of Appeal was filed within time. That the Preliminary Objection on limitation had indeed been raised before the trial court. It was annexed to the Supporting RULING ELCLA E017 OF 2026B 3

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Affidavit as an exhibit. Further, that it was the Respondent, through the impugned Ruling, who introduced the question of trespass/encroachment, an issue that had never been pleaded or argued in the Preliminary Objection. 8. He submitted that Order 43 Rules 1 and 2 of the Civil Procedure Rules were mere citation provisions. In any event a Preliminary Objection properly raised ought to be capable of disposing of the matter without recourse to technical objections of the kind now raised. He urged the Court to be guided by Article 159(2)(d) of the Constitution to exercise its discretion in favour of granting the stay sought. In rebuttal, he denied that any amendment had in fact been made to the Memorandum of Appeal. He asserted that the documents filed and served were the same documents originally filed, and submitted. Lastly, he submitted that the matters raised by the Respondent were, in any event, mere technicalities that ought not to render the application nugatory. Respondent’s Submissions 9. Learned counsel for the Respondent elaborated on the grounds of objection. He submitted that the Respondent's new advocates were served with the Memorandum of Appeal on the preceding Saturday at about 8.12 P.M., by way of WhatsApp, under cover of a document styled "Amended Memorandum of Appeal," notwithstanding that no leave to amend had been sought. They further argued that, in any event, the purported amendments were not RULING ELCLA E017 OF 2026B 4

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distinguished from the original text by underlining, colour, or other permissible method, contrary to Order 8 Rule 1 of the Civil Procedure Rules. He urged the Court to disqualify the amended Memorandum of Appeal on this account. 10. He further invoked Order 43 Rule 1(2) of the Civil Procedure Rules by submitting, in effect, that no leave to appeal had been sought or obtained before the Notice and Memorandum of Appeal were filed against what was an interlocutory ruling of the subordinate court. On the application itself, he submitted that the document annexed to found the application under Order 42 was a mere ruling and not a decree or order of the kind contemplated for an application of this nature. That the Applicants had at no point extracted a formal order from the impugned Ruling and that, in the circumstances, there existed no order capable of being stayed. He submitted that the application therefore lacked a legal basis and ought to be dismissed. Analysis and Determination 11. Having considered the Notice of Motion, the Supporting Affidavits, the Respondent's Preliminary Objection, the record, the rival oral submissions and the authorities cited, the following issues commend themselves for determination: a) Whether the Respondent's Preliminary Objection dated 27th July 2026 is merited; RULING ELCLA E017 OF 2026B 5

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b) Whether the instant application is competent in the face of the provisions of Order 42 Rule 6 of the Civil Procedure Rules; c) Who should bear the costs of the application. 12. The issues the parties were supposed to address the court at this point of the proceedings were preliminary in nature. Therefore, the contention as to whether the Appeal herein is competent or was filed in compliance with Order 43 Rule 1 of the Civil Procedure Rules is neither here nor there at this juncture. Further, it means that the submissions as to the merits of the application or those of the appeal are not an issue the court is to determine at this point. Be that as it may, the notice of preliminary objection raised by the Respondents is in tandem with the preliminary point the parties were invited to address the court and therefore the Court sets to decide on both of them at once. This sets me to addressing them below. a) The Respondent's Preliminary Objection 13. The test for a Preliminary Objection remains that settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. A preliminary objection consists of a pure point of law argued on the assumption that the facts pleaded by the other side are correct, and cannot properly be raised where any fact requires to be ascertained, or where what is sought is the exercise of judicial discretion. RULING ELCLA E017 OF 2026B 6

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14. Applying that test, the ground relating to the alleged unmarked amendment of the Memorandum of Appeal cannot properly be resolved as a Preliminary Point of law. The court would is being invited to investigate as to whether there was a Memorandum of Appeal filed earlier and an Amended one later. The Applicants, on submissions, disputed the very premise of the objection, asserting that no amendment was in fact made and that the document served was the original Memorandum of Appeal. That is a live factual dispute unsuited to summary disposal by way of Preliminary Objection. The Court declines to determine it on that basis, without prejudice to either party's right to raise it, with appropriate evidence, in the substantive appeal. 15. The Court notes that service of the Memorandum of Appeal was effected via WhatsApp at 8:12 P.M. on a Saturday evening, which fact was submitted by Counsel for the Respondent but admitted by the Appellant’s counsel also in response. Such mode and timing of service falls short of the orderly practice contemplated by the Civil Procedure Rules. But be that as it may, in terms of Order 50 Rule 9(2) and (3) of the Civil Procedure Rules, any service done outside of the working hours (five) of Friday or Saturday is deemed have been made on the next working day which is Monday. 16. Whereas Article 159(2)(d) of the Constitution 2010 enjoins courts to administer justice without undue regard to technicalities, this does not license parties to disregard established procedures. In the present case, however, the RULING ELCLA E017 OF 2026B 7

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Respondent’s advocates were able to file a considered Preliminary Objection the very same day of oral hearing. No prejudice has been demonstrated to have been occasioned in the process. In any event, the parties were to address the Court on the same issue of compliance with Order 42 Rule 6 of the Civil Procedure Rules. The Court, therefore, declines to consider the service invalid, but cautions that future service should strictly comply with prescribed modes to avoid undermining the integrity of proceedings. c) Whether the filing of the instant application complies with Order 42 Rule 6 of the Civil Procedure Rules 17. The law regarding filing of applications for stay of execution or proceedings before trial courts when an appeal has been preferred is premised on Order 42 Rule 6(1) of the civil procedure Rules. The provision is that, “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 sufficient 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 RULING ELCLA E017 OF 2026B 8

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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.” 18. Courts have interpreted the import of the above provisions in a number of decisions. For instance, in Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2023] KEELC 21845 (KLR) (24 November 2023) (Ruling) this Court held: “In the instant Application, it has not been denied or even submitted on to the contrary that the Appellant did not move the trial court first for its determination on whether or not it was to grant an order of stay of enforcement of the orders of the trial court as made on 16/05/2021. It therefore means that the instant Application was made contrary to the requirements of Order 42 Rule 6(1) of the Civil Procedure Rules. It means further that as the Respondent argued, the Application is premature, incompetent and bad in law.” 19. Further, regarding compliance with Order 42 Rule 6(1) of the Civil Procedure Rules the learned judge, in Vipingo Ridge Limited v Swalehe Ngonge Mpitta [2021] eKLR held:- RULING ELCLA E017 OF 2026B 9

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“A plain reading of the provision requires that before an Applicant seeking stay pending appeal moves the appellate court for stay orders, he/she must first have applied for the orders before the trial court. And there must be evidence that the trial court pronounced itself on the application whether it granted or declined to grant it. 12. It appears to me therefore that it would be irregular for such applicant to move the appellate court without first approaching the trial court on the matter and the trial court pronouncing itself on it one way or the other.” 20. Also, in Pius Mbithi & Another v Daniel Mutiria & Another [2017] eKLR, it was held: “I read and understand the rule to dictate that the first port of call by an application for stay pending appeal is the trial court and that once it considers and determines the application then an aggrieved party has the liberty to approach this court and have the orders so issued set aside. 17. Put in the context of the matter before me it is clear that the trial court has not been afforded the opportunity to hear and determine any application for stay. That being the position, and being a court of law applying the law was enacted, this court must RULING ELCLA E017 OF 2026B 10

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tell the applicant that the law is for all to be observed and not be side-stepped. I am in no doubt that the application seeking stay before this court as the appellate court is prematurely made and does not lie.” 21. Additionally, in Mwangi v Mokaya (Environment and Land Appeal 17 of 2022) [2022] KEELC 14835 (KLR) (17 November 2022) (Ruling) this Court held that: “A plain grammatical or textual reading of this terminology reading of the text above, particularly, the underlined phrase is to the effect that a party is not permitted to skip the most important point as the first point of call: the respective trial magistrate or judge against whose order or judgment an appeal is preferred. After he or she has moved the Court and his Application is granted or not, depending on how he views the decision, then he/she will file another application in the Court appealed to. It is upon this step having been taken that the application for stay of proceedings in the trial can be considered by the appellate Court. Absent of this step, the application filed for stay of execution or proceedings directly to the appealed to is improper.” RULING ELCLA E017 OF 2026B 11

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22. In the instant application, the applicant moved the Court before seeking a similar order in the court below. This is contrary to the law and procedure. This Court’s jurisdiction was invoked prematurely. Thus, the application is incompetent and struck out. The costs be by the applicant. a) The appellant to file the Record of Appeal within the next 30 days and fix it for directions before the Judge either on the next mention date or earlier. The Appeal shall be mentioned on 29th October 2026 for further directions and confirmation of compliance with the Direction below. The Appellants shall take all necessary steps to prepare the appeal for hearing and shall file the Record of Appeal, if not already filed, within thirty (30) days from the date hereof, failing which either party shall be at liberty to apply. b) Each party shall bear their own costs of this application. 23. It is so ordered. Ruling dated, signed and delivered virtually via the Teams Platform this 12th day of August 2026. HON. DR. IUR NYAGAKA JUDGE From 09:53 AM in the presence of: S. M. Onyango Advocate for Respondent RULING ELCLA E017 OF 2026B 12

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Ongoso Advocate for the Appellant RULING ELCLA E017 OF 2026B 13

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