Okech v Nyateko (Environment and Land Appeal E013 of 2025)

2. The Application is supported by the grounds set out on its face and the Supporting Adavit sworn by Fredrick Omondi Oketch on 29th September 2025. 3. The Applicant depones that he is the Appellant in ELC Appeal No. E013 of 2025 and one of the Plaintis in ELC Civil Case No. E027 of 2025 thereby making him fully conversant with the underlying facts. 4. The Applicant states that the dispute originates from East Alego/nyajuok/2634, a parcel created from the subdivision of the original family land registered as Siaya/nyajuok/153. The present appeal arises from a judgment of the Magistrate’s Court (Siaya ELC Case No. MC. ELC. 142 of 2018) concerning parcel EAST Alego/nyajuok/2634. 5. The core claim in both the Appeal (E013 of 2025) and ELC Civil Case No. E027 of 2025 is the validity of the title to land parcel East Alego/nyajuok/2634, which is linked to the validity of the root title Siaya/nyajuok/153. The Applicant seeks declarations that all subdivisions and subsequent transfers emanating from parcel Siaya/nyajuok/153 including parcel Siaya/nyajuok/2634 were executed fraudulently, illegally and are null and void ab initio. 6. The Applicant contends that because the validity of the title to parcel Siaya/nyajuok/2634 depends entirely on the root title Siaya/nyajuok/153, both the Appeal and the Civil Suit share common questions of law and fact, as well as the same principal parties. 7. The Applicant further depones that on 8th July 2025, together with his brother, Christopher Otieno Oketch (acting as legal representatives of their late father's estate), they instituted ELC Civil Case No. E027 of 2025 against 10 defendants, including the Respondent herein. 8. Consequently, the Applicant submits that consolidating the matters or granting a stay of the appeal serves the overarching interests of justice, prevents the rendering of conicting decisions by courts of concurrent jurisdiction, eliminates duplication of evidence and saves valuable judicial time without causing prejudice to the Respondent. 9. In response, the Respondent, Juma Nyateko, led a Replying Adavit opposing the application in its entirety, terming it unmerited an afterthought and a clear abuse of the court process. 10. The Respondent highlights that the Applicant actively participated in the lower court proceedings in Siaya ELC Case No. MC. ELC. 142 of 2018. He argues that if the Applicant had any legitimate claims regarding fraud or the root title, he ought to have raised them by way of a counterclaim in the trial court rather than waiting to le a fresh suit years later. 11. The Respondent asserts that by instituting ELC Civil Case No. E027 of 2025 while simultaneously pursuing an appeal, the Applicant is engaging in prohibited "forum shopping" and "double litigation". 12. It is the Respondent’s position that the application is brought in bad faith to delay him from enjoying the fruits of a valid judgment obtained in MC. ELC. 142 of 2018. Finally, the Respondent submits that as a matter of procedure and law an appeal and a fresh suit are inherently incompatible for consolidation. An appeal involves an appellate review of an already determined trial record, whereas a suit involves unadjudicated claims requiring new evidence. 13. The Applicant also responded to the Respondent’s Replying Adavit sworn on 14th July 2026 which the court has noted as summarised in the submissions dated led on 23rd July 2026. Was this done by adavit? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5735/eng@2026-09-24 2

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Submissions 13. The court issued directions that the application be disposed of by way of written submission. The Respondents submissions were not in the CTS at the time of this ruling. Applicant’s Submissions 14. The Appellant/Applicant’s submissions were led on 23rd July 2026 in support of the Notice of Motion dated 29th September 2025. The Applicant seeks an order to consolidate Siaya ELC Appeal No. E013 of 2025 with Siaya ELC Civil Case No. E027 of 2025 or in the alternative, an order staying proceedings in the Appeal pending the hearing and determination of the Civil Suit. The Applicant also responded to the Respondent’s Replying Adavit sworn on 14th July 2026. 15. The Applicant submits that ELC Appeal No. E013 of 2025 arises from the judgment of the Magistrate’s Court at Siaya (Hon. Benjamin Limo) in ELC Case No. MC.ELC.142 of 2018 delivered on 26th February 2025. The Appeal challenges the nding that the Respondent is the lawful owner of parcel East Alego/nyajuok/2634, contending that the title was acquired fraudulently, illegally and unprocedurally without succession proceedings regarding the original parcel, Siaya/nyajuok/153. 16. Additionally, the Applicant (alongside Christopher Otieno Oketch, as legal representatives of the estate of the late Oketch Otuoma) is a Plainti in ELC Civil Case No. E027 of 2025, instituted on 8th July 2025. That suit challenges the root title of Siaya/nyajuok/153, seeking declaratory orders that all subdivisions and transfers therefrom were fraudulent, illegal and null and void. The Respondent herein (Juma Nyateko) is the 3rd Defendant in the Civil Suit. 17. The Applicant highlights that on 23rd June 2026, this Honourable Court delivered a Ruling in ELC Civil Case No. E027 of 2025 dismissing an application by the 1st, 2nd and 3rd Defendants to strike out the suit on the ground of res judicata. The Court expressly held that the suit raises triable issues regarding fraud that must proceed to a full hearing on merit, reinforcing the necessity of resolving both matters together. 18. In support of the substantive prayers, the Applicant framed and submitted on ve (5) primary issues for determination summarized as follows;- 19. Whether the two matters involve common questions of law and fact: The Applicant submits that both suits revolve around the same subject matter and derivative title. The Appeal challenges the derivative title East Alego/nyajuok/2634, while the Civil Suit challenges the root mother title Siaya/ nyajuok/153. Both matters involve common questions regarding whether the subdivisions/transfers were fraudulent, whether succession was conducted, and whether resultant titles are valid. Reliance is paced in Kinuthia v Ndiritu [2024] KEHC 5772 (KLR) (citing Prem Lala Nahata & Anor v Chandiprasad Sikaria [2007] 2 SCC 551 and Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2000] eKLR), Paul Kibugi Muite v Uniken Marketing Services Limited [2018] KEELC 2124 (KLR), and Mutu & 2 others v Gathina & 3 others [2023] KEELC 22216 (KLR) (citing Omoke v Kenyatta & 83 others [2021] KESC 27 (KLR)). 20. Whether consolidation is necessary to avoid conicting judgments and multiplicity of proceedings: The Applicant submits that hearing the Appeal and Civil Suit separately creates a real risk of conicting determinations on the validity of the mother title versus the derivative title. To buttress this point Counsel relies on Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR, Mutu & 2 others v Gathina & 3 others [2023] KEELC 22216 (KLR), and Paul Kibugi Muite v Uniken Marketing Services Limited [2018] KEELC 2024 (KLR), the Applicant contends that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5735/eng@2026-09-24 3

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consolidation facilitates ecient disposal and consistency. Replying to the Respondent’s argument that an appeal and a fresh suit cannot be consolidated as they are separate species of proceedings, the Applicant submits that the Court’s discretion is wide and not barred by procedural labels, citing Article 159(2) of the Constitution. 21. Whether the application is an abuse of court process, frivolous or an afterthought: The Applicant refutes the Respondent's claims that this application is an afterthought. The Applicant demonstrates that allegations of fraud and illegality were raised in his Statement of Defence dated 5th July, 2018 and written submissions in the trial court. However, the trial court found the title indefeasible under Section 26(1) of the Land Registration Act without properly evaluating the fraud. The Civil Suit could not be instituted earlier because Letters of Administration Ad Litem were only obtained by the Applicant's brother on 2nd April 2025, after judgment had been delivered. Citing Kinuthia v Ndiritu and Paul Kibugi Muite v Uniken Marketing Services Limited, the Applicant submits that the steps taken are legitimate procedural remedies. 22. Whether the Respondent will suer prejudice if consolidation is ordered: The Applicant argues that the Respondent is a party to both matters and will have a full opportunity to be heard. Conversely, the Applicant will suer severe prejudice in facing parallel, costly litigation with the risk of conicting rulings. Citing Law Society of Kenya v Centre for Human Rights & Democracy & 12 others, Paul Kibugi Muite v Uniken Marketing Services Limited, and Mutu & 2 others v Gathina & 3 others, the Applicant maintains that consolidation serves impartial justice to all parties. 23. Whether proceedings in the Appeal should be stayed pending determination of the Civil Suit: In the alternative, the Applicant submits that if consolidation is not granted, the Appeal should be stayed pending the nal determination of ELC Civil Case No. E027 of 2025. Relying on Hassan & Another v Makacy & 2 Others [2025] KEELC 3821 (KLR) and Baikunyua Enterprises Limited v The Standard Limited & Another, the Applicant argues that stay is necessary to avoid conicting judgments, save judicial resources, promote judicial economy, preserve the status quo and address foundational jurisdictional challenges regarding root ownership. Analysis and Determination 24. I have carefully considered the application, adavit in support And opposition thereto as well as the submissions on record. The following issues commend determination: 1. Whether an appellate proceeding ELCLA NO. E013 OF 2025 can be consolidated with a fresh substantive civil suit ELCLC NO. E027 OF 2025 that has not been heard at rst instance. 2. Who bears the Costs of the application? 25. In addressing whether ELCLC No. E027 of 2025 is available for consolidation, the court will rst look at where it stands procedurally. A quick recourse to paragraph 51 of the Ruling delivered by this court on 23rd June, 2026 leaves no doubt that the said suit remains active, live and pending determination on its merits. 26. Indeed, by dismissing the preliminary objection on res judicata and directing a full trial, the Court rendered a purely interlocutory ruling that did not conclude the substantive rights of the parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5735/eng@2026-09-24 4

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27. This brings us directly to the core principle of consolidation. Consolidation is a case management tool intended to prevent piecemeal litigation and conicting judgments where separate actions before the Court stem from the same transaction or involve overlapping questions of law and fact. 28. In the case of Law Society of Kenya v. Center for Human Rights and Democracy and 12 Others, the Supreme Court observed that: “ The essence of consolidation of suits is to facilitate the ecient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it.” 29. Applying the principles enunciated in the Law Society of Kenya case (supra) this Court must examine whether consolidating the present appeal with a fresh suit advances the ecient and fair dispensation of justice or whether it creates procedural unfairness and jurisdictional misalignment. 30. This Court agrees entirely with the position taken by the Respondent. As a matter of basic civil procedure and statutory law, an appeal and a fresh civil suit are inherently incompatible for consolidation. 31. Under Section 78 of the Civil Procedure Act, an appellate court exercises a supervisory and review jurisdiction. It sits as a court of record to evaluate an already determined trial record in this case, MC.ELC No. 142 of 2018 to test the correctness of the trial magistrate's judgment. Conversely, a fresh substantive suit ELCLC No. E027 of 2025 invokes the original jurisdiction of the court, involving unadjudicated claims, pre-trial directions and the taking of fresh viva voce evidence. 32. In the appeal, this Court is strictly conned to the four corners of the certied record from the lower court; no new evidence can be introduced except under the very narrow parameters of Order 42 Rule 27 of the Civil Procedure Rules. Conversely, the original suit demands the taking of fresh viva voce evidence. Attempting to run the appeal and the substantive suit under one consolidated banner would in my view produce total procedural chaos, severely prejudice the parties and completely destabilize the proper administration of justice. Consequently, this Court holds that an appeal and a substantive civil suit are inherently incompatible for consolidation. 33. Moreover when exercising original jurisdiction under Section 13 of the Environment and Land Court Act, 2011, read together with Article 162(2)(b) of the Constitution, this Court acts as a trial court of rst instance. In that trial capacity, the statutory powers of the Court are geared towards establishing facts. The Court receives oral and documentary evidence de novo, assesses the demeanor and credibility of witnesses under cross-examination and issues original declarations and decrees based on fresh evidence proven before it. 34. Conversely, when this Court steps into its Appellate Jurisdiction pursuant to Section 16(1) of the Environment and Land Court Act, its powers are governed by an entirely dierent statutory mechanism specically Section 78 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules. Sitting as an appellate court, this courts mandate is strictly limited to reviewing recorded testimony, arming, varying or setting aside the lower court’s decree or remitting the matter back to the Subordinate Court for retrial where appropriate. 35. Consequently, a judicial ocer sitting in an appellate capacity cannot simultaneously sit as a trial judge in the exact same dispute. The standard of review, the rules of evidence, the burden of proof and the scope of judicial inquiry in an appeal are fundamentally distinct from those governing a fresh trial. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5735/eng@2026-09-24 5

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36. To merge an appeal with a substantive suit would be to conate Section 13 and Section 16 of the Environment and Land Court Act. This Court lacks the legal competence to erase those statutory boundaries. 37. Having declined to grant consolidation, I now turn to the alternative prayer for an order staying proceedings in ELCL Appeal No. E013 of 2025 pending the determination of ELCL Civil Case No. E027 of 2025. 38. I will rst discuss how the courts have over time handled the subject of stay of proceedings. 39. In the case of Kenya Wildlife Service v James Mutembei [2019] eKLR the court held that: “ ... Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent…” 40. The authors of Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330, wrote that: The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue. 41. I note that in the instant application the court has been moved under the provisions of Section 1A, 1B, & 3A of the Civil Procedure Act and Order 11 of the Civil Procedure Rules the later are largely on case management. 42. Noting from the case law above it is clear that the power to grant a stay of proceedings is an equitable and discretionary remedy which remedy must be exercised sparingly. 43. The question to pose therefore is whether there are any exceptional circumstances to warrant the stay of this appeal. This Court notes that the applicant voluntarily lodged an appeal challenging a Magistrate's Court judgment. He then subsequently instituted a fresh suit which this court vide its ruling dated 23/6/2026 sustained . The Applicant now wants to rely on the said suit to freeze their own appellate process on the basis that there could be a danger of conicting decisions. 44. As I have noted elsewhere in this ruling, the scope of this appeal is conned to reviewing the certied trial record on the Judicial review matter that was heard by the trial court. I see no chances of conicting decisions noting the scope of judicial review proceedings. 45. Halting this appeal indenitely to await a full trial in ELCL Civil Case No. E027 of 2025 directly defeats the overriding objective set out under Sections 1A and 1B of the Civil Procedure Act, which imposes a statutory obligation on this Court to facilitate the just, expeditious and proportionate resolution of disputes. Granting a stay under these circumstances would unfairly prejudice the Respondent by depriving him of an expeditious determination and nality regarding the lower court determination. 46. This Court is, therefore, persuaded that the Applicants have not made a case to warrant consolidation of ELCL Appeal No. E013 of 2025 with ELCL Civil Case No. E027 of 2025. The court is also not persuaded that the grant of stay of proceedings in the suit should issue. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5735/eng@2026-09-24 6

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47. The Notice of Motion dated 29th September 2025 is accordingly dismissed. Costs of the application are awarded to the Respondent. It is so ordered DATED AT SIAYA THIS 24TH DAY OF SEPTEMBER 2026 RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM HON. JUSTICE A. E. DENA JUDGE In the Presence of: Ms. Musyoki for Applicant No appearance for the Respondent Court assistant: Victor Bwire https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5735/eng@2026-09-24 7

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