Mwai v Mbugua & another

6. That costs of this application be provided for. 2. The Application is supported by the grounds set out on its face and the Adavit of the Applicant. 3. In a nutshell in his Supporting Adavit, the Applicant, David Nguyo Mwai, deposes that after obtaining a favorable Judgment in the Subordinate Court in MCELC 169/2023 on June 13/06/2024, the Respondents appealed the decision to the Environment and Land Court via ELC Appeal No. E105 of 2024, which superior Court subsequently dismissed the appeal for want of merit on 3/06/2025, while expressly declining to grant a stay of execution, as evidenced by the Judgment annexed and marked “DM-1”. The Applicant states that the Respondents then moved to the Court of Appeal in Nairobi under COACAPPI/E353/2025 seeking stay of execution, but the Appellate Court similarly declined to grant interim stay orders vide its directions dated 12/06/2025, attached as Annexure “DM-2”. 4. The Applicant further averred that despite these Rulings, the Respondents returned to the trial Magistrate Court via an application dated 12/06/2025, and obtained ex parte interim stay orders on 19/06/2025, copy annexed as “DM-3”. The Applicant responded by ling a Replying Adavit on 22/07/2025, and making oral representations on 23/07/2025, to draw the trial Court's attention to the superior Court decisions. However, the Subordinate Court extended the stay orders, prompting the Applicant to le an application on 23/07/2025, to set aside the irregular orders for lack of jurisdiction, annexed as “DM-4”. 5. The Respondents subsequently led a Notice of Withdrawal of their Court of Appeal application, marked as Annexure “DM-5”. Following submissions, the trial Court vacated the interim stay orders on 6/08/2025 a position claried on 10/09/2025 allowing the Applicant to undertake partial execution as demonstrated by the Sales Return Form annexed and marked “DM-6”. Subsequently, on 14/11/2025, the Subordinate Court rendered a Ruling arming its lack of jurisdiction, copy annexed as “DM-7”. 6. Despite this Ruling, the Respondents led a fresh application on the same day, whereupon the trial Court inexplicably issued interim status quo orders halting further execution, attached as Annexure “DM-8”. The Applicant's counter-application dated 26/11/2025, seeking to set aside these illegal orders, was declined by the Subordinate Court vide the order marked “DM-9”, and the trial Court subsequently extended the interim orders on 18/12/2025, pending a Ruling set for January 23/01/2026. 7. The Applicant contends that the trial Court's actions violate the doctrine of stare decisis, usurp the supervisory authority of the Environment and Land Court, and breach Regulation 35 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020. He asserts that the subordinate Court acts functus ocio and completely without jurisdiction, eectively driving him from the seat of justice and rendering the Judgment of the superior Court nugatory. Consequently, the Applicant urges the Court to urgently exercise its supervisory jurisdiction under Article 165(6) and (7) of the Constitution to stay all subordinate Court proceedings and preserve the integrity and hierarchy of the judicial process. 8. The Application is unopposed. 9. The second Application dated 15/06/2026 is led by the Appellant where it is brought under Article 159 and 162 (2) of the Constitution of Kenya, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling laws. The Applicant seeks from the Court: 1. Spent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5569/eng@2026-09-21 2

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2. That this Honourable Court be pleased to issue a status quo order pending the hearing and determination of this application. 3. That the costs of this application be provided for. 10. The Application of 15/06/2026 is supported by the Adavit of Patrick Ngigi Mbugua. The Deponent, has sworn the Adavit as a Director of the 2nd Appellant, and he deposes that on 2/01/2026, this Honourable Court stayed proceedings in Ruiru ELC Case No. E169 of 2023 pending the hearing and determination of the Respondent's application dated 18/12/2025, as evidenced by the Order annexed and marked “PNM-1”. The Deponent states that despite this Court's stay order and the subsisting status quo orders issued in the lower Court on November 17/011/2025, attached as Annexure “PNM-2”, the Respondent has acted in total deance of Court directions by attempting to alienate nine land parcels, namely Ruiru East/Juja East Block 214/1205, 214/1206, 214/1207, 214/1208, 214/1209, 214/1210, 214/1211, 214/1199, and 214/1212. He further avers that the Respondent has fenced o six of the properties and purported to advertise them for sale at Kshs. 2,000,000/=, as demonstrated by the photograph of the fenced property with sale advertisements and the ocial Ruiru Land Registry search annexed and marked “PNM-3 "a" and "b"”. 11. In addition, the Deponent deposes that the Respondent has erroneously fenced o parcels already sold to third-party purchasers, thereby exposing the Appellants to imminent litigation from the purchasers, as conrmed by a copy of a title deed belonging to one of the aected individuals, annexed and marked “PNM-4”. The Deponent, on advice of his Advocates Messrs A. N Mwanzia & Company Advocates, contends that the Respondent’s unlawful acts risk dispossessing the Appellants, defeating the subject matter of the suit, and rendering the Court’s determination nugatory. Consequently, he asserts that it is in the interest of justice that a status quo order be granted to preserve the suit property and avert substantial loss and prejudice to the Appellants. 12. The Court directed that both applications be canvassed by way of written submissions. Issues for Determination 13. 14. A critical examination of the pleadings, adavits, and written submissions led by the parties reveals two central issues for determination that govern both applications. 1. The rst issue is whether the subordinate Court acted without jurisdiction, functus ocio, and in direct violation of the constitutional doctrine of stare decisis by issuing interim stay and status quo orders to halt the execution of a superior Court Judgment after both the Environment and Land Court and the Court of Appeal had explicitly declined to grant interim stay orders. 2. The second issue is whether the Applicant’s invocation of the supervisory jurisdiction of this Court under Article 165(6) and (7) of the Constitution is merited to set aside the subordinate Court’s orders, and whether the Appellants’ subsequent prayer for status quo orders dated 15/06/2026 can legally stand. In analyzing the rst issue, it is imperative to trace the jurisdictional boundaries of a subordinate Court once an appeal from its decision has been fully determined by the Environment and Land Court, and where higher appellate Courts have pronounced themselves on the question of stay. The law governing stay of execution is rmly rooted in Order 42 Rule 6 of the Civil Procedure Rules. Under Order 42 Rule 6(1), an application for stay of execution pending appeal may be presented either to the Court https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5569/eng@2026-09-21 3

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that passed the Decree or to the Court to which the appeal is preferred. However, once an appeal is heard and determined by the superior Court, the subordinate Court loses all judicial authority to entertain applications seeking to stay, alter, or interfere with the execution of the appellate Decree, save for performing purely ministerial execution functions remitted to it under Section 38 of the Civil Procedure Act. 15. When this Court delivered its Judgment in ELC Appeal No. E105 of 2024 on 3/06/2025, dismissing the Respondents' appeal for want of merit and expressly declining to grant a stay of execution, the original Subordinate Court Judgment in MCELC 169/2023 was subsumed into the appellate Judgment of this Court. At that juncture, the trial Magistrate Court became functus ocio regarding any substantive stay of execution or interference with the Decree. The concept of functus ocio is an enduring statutory and common law principle designed to preserve nality in litigation. As the Court of Appeal famously articulated in Telkom Kenya Limited v John Ochanda [2014] eKLR: “ Functus ocio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the nal decision thereon. Once a Court has exercised its jurisdiction and rendered its nal decision, its authority over that subject matter is exhausted, and it cannot revisit or re-examine the decision, save as provided by statute for review or correction of clerical errors." 16. Despite the clear dismissal of their appeal and the explicit refusal of stay orders by this Court on 3/06/2025, the Respondents/Appellants returned to the trial magistrate Court in Ruiru MCELC Case No. E169 of 2023 on 12/06/2025 and obtained ex parte interim stay orders, which were repeatedly extended, vacated, and then reintroduced under the guise of status quo orders on 14/11/2025 and 18/12/2025. Although those orders were vacated on 6/08/2025 and the trial Court correctly rendered a Ruling arming its lack of jurisdiction on 14/11/2025, the trial Court inexplicably entertained a fresh application on the very same day and issued interim status quo orders halting execution. The trial Court went further to extend those illegal orders on 18/12/2025. This conduct by the trial magistrate Court constitutes a grave judicial overreach and an egregious jurisdictional heresy. A subordinate Court possesses no statutory or inherent power to grant stay orders against a Judgment and Decree rendered by the Environment and Land Court, nor can it grant stay of execution after the superior Court itself has expressly refused such stay. 17. The poignancy of this issue is further amplied by the fact that the Court of Appeal, under COA CAPPI/E353/2025, similarly declined to grant interim stay orders vide its directions dated 12/06/2025. The refusal by the Court of Appeal to grant interim stay orders is a pivotal legal fact. Under the constitutional architecture and judicial hierarchy of Kenya, the Court of Appeal is a superior Court of record above the Environment and Land Court, which in turn holds supervisory authority over the subordinate magistrate Courts pursuant to Article 165(6) and (7) as read with Article 162(2) (b) of the Constitution. When the Court of Appeal declines an interim stay, it signies that there is no subsisting legal barrier halting the execution of the valid Decree. 18. For a trial Magistrate to subsequently entertain an application on the exact same subject matter and issue interim status quo orders halting execution ies directly in the face of the constitutional doctrine of stare decisis and subverts the entire judicial hierarchy. Lower Courts are strictly bound by the directions and Rulings of superior Courts. By re-issuing stay orders under the guise of status quo orders, the trial magistrate unlawfully sat on appeal over both the Environment and Land Court and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5569/eng@2026-09-21 4

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the Court of Appeal. In National Assembly of Kenya & Another v Institute for Social Accountability & 6 Others [2017] eKLR, the Court of Appeal reiterated this foundational principle: “ The doctrine of stare decisis is the bedrock of our judicial system. It ensures predictability, certainty, and uniformity in the application of the law. A lower Court is strictly bound by the decision of a higher Court and has no jurisdiction or discretion to bypass, undermine, or issue orders that directly or indirectly contradict, vary, or neutralize the directives issued by a superior Court." 19. By issuing status quo orders that eectively halted execution after both the Environment and Land Court and the Court of Appeal had declined to grant stay, the trial magistrate acted in total contempt of judicial hierarchy and in usurpation of appellate authority. The subordinate Court acted wholly without jurisdiction when it entertained the Respondents' applications dated 12/06/2025 and 14/11/2025 and issued stay and status quo orders. The law on jurisdiction is uncompromising. As Nyarangi JA famously held in the locus classicus decision of Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1: “ Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for the continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 20. The moment the trial Court was made aware of the Judgment of this Court dated 3/06/2025 and the Court of Appeal directions dated 12/06/2025, it was under a strict constitutional duty to down its tools. Every order issued by the subordinate Court purporting to grant stay or status quo after 3/06/2025 is an absolute nullity ab initio. 21. Having established that the subordinate Court acted completely without jurisdiction and functus ocio, this Court must address the second issue regarding the invocation of supervisory jurisdiction under Article 165(6) and (7) of the Constitution of Kenya, 2010. Article 165(6) establishes that the High Court and by extension the Environment and Land Court exercising equal status under Article 162(2) (b)) has supervisory jurisdiction over subordinate Courts and may call for the record of any proceedings before a subordinate Court and make any order or give any direction it considers appropriate to ensure the fair administration of justice. 22. Where a trial magistrate repeatedly issuing illegal orders that violate superior Court mandates, drives a successful litigant from the seat of justice, and threatens to render a nal Judgment nugatory, the supervisory Court is duty-bound to intervene decisively to preserve the integrity of the judicial process. The Applicant’s Notice of Motion dated 18/12/2025 is a proper invocation of Article 165(6) and (7). The trial Court's persistent grant of status quo orders on 14/11/2025 and 18/12/2025 eectively neutralised a valid Judgment of a superior Court. Such actions violate Regulation 35 of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, and erode public condence in the administration of justice. The Applicant’s application dated 18/12/2025 was brought precisely to arrest this judicial lawlessness. The trial magistrate’s orders of status quo dated 14/11/2025 and 18/12/ 2025 are nullities ab initio for want of jurisdiction. 23. Conversely, the Appellants' Notice of Motion dated 15/06/2026, supported by the adavit of Patrick Ngigi Mbugua, seeks status quo orders on the ground that the Respondent is executing the Decree by fencing o and advertising land parcels for sale. However, execution of a valid Decree issued by a Court of competent jurisdiction cannot be equated to unlawful alienation or trespass. Execution is the lawful realization of judicial rights. The Appellants, having been denied stay of execution by this https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5569/eng@2026-09-21 5

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Court on 3/06/2025 and by the Court of Appeal on 12/06/2025, cannot use an application for status quo in this Court as a secondary vehicle to obtain the very stay of execution that was explicitly denied to them by both superior Courts. Granting the Appellants' application would sanction litigious abuse and reward procedural lawlessness. 24. In the circumstances, the Applicant’s Notice of Motion dated 18/12/2025 is overwhelmingly merited and must be allowed, while the Appellants’ Notice of Motion dated 15/06/2026 is entirely unmerited and must be dismissed. 25. Consequently, this Court makes the following nal orders: i. The Applicant’s Notice of Motion dated 18/12/2025 is hereby allowed as prayed. ii. An order is hereby issued calling up into this Court for examination the record of the trial Court in Ruiru Magistrate’s Court Case No. E169 of 2023 pursuant to Article 165(6) and (7) of the Constitution of Kenya. iii. An order of stay of all proceedings in Ruiru Magistrate’s Court Case No. E169 of 2023 is hereby granted pending further directions of this Court. iv. All orders issued by the Ruiru Magistrate’s Court in Case No. E169 of 2023 granting stay of execution, status quo, or otherwise interfering with the execution of the Judgment and Decree arising from ELC Appeal No. E105 of 2024 including the orders dated 19/06/2025, 14/11/2025, and 18/12/2025 are hereby vacated, set aside, and declared null and void ab initio for want of jurisdiction. v. The Subordinate Court in Ruiru Magistrate’s Court Case No. E169 of 2023 is hereby restrained from entertaining any further applications or issuing any orders inconsistent with or seeking to stay the Judgment and Decree of this Court delivered on 3/06/2025 in ELC Appeal No. E105 of 2024. vi. The Appellants’ Notice of Motion dated 15/06/2026 is hereby dismissed in its entirety for lack of merit. vii. The costs of the Notice of Motion dated 18/12/2025 and the Notice of Motion dated 15/06/2026 are hereby awarded to the Applicant, David Nguyo Mwai. viii. Mention for further directions on 15/10/2026 and the lower Court’s le to be availed during the Mention. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAM ON THIS 21ST DAY OF SEPTEMBER 2026. ............................. MOGENI J JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5569/eng@2026-09-21 6

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Mr. Okeyo for the Appellant Mr. Nduati for the Respondent Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5569/eng@2026-09-21 7

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