Beth Gakii Kinya Kiunga v Dieter Wellendorf

determination of an appeal timeously preferred before the Court of Appeal. 3. Upon service, the Plaintiff/ Respondent strongly opposed the application via Grounds of Opposition dated 10 th April, 2026, alongside written submissions. Hence, this ruling is make a determination of the underlying issues raised hereon in it’s own merit. II. The Notice of Motion application dated 26 th February, 2026 by the Applicant 4. The Applicant sought for the following orders: a) Spent b) Spent. c) That pending the Hearing and determination of this application inter - partes, the Honourable Court, in its inherent jurisdiction, be pleased to issue a temporary stay of proceedings of the Ruling/Order dated 29th January, 2026 and all consequential orders. d) That in its inherent jurisdiction, the Honourable Court be pleased to stay the aforesaid Ruling/Order dated 29th January, 2026 pending the hearing and determination of the Appeal lodged at the Court of Appeal. e) That the costs of this application be provided for. 5. The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 16 Paragraphed annexed RULING: ELC SUIT NO. E005 OF 2025 Page 2 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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affidavit of DIETER WELLENDORF, the Defendant herein averred as follows that:a) He was the Defendant/Applicant herein, a director of Madita Company Limited, hence conversant with the matter to this suit, duly authorized and competent to swear this affidavit. b) He had instructed his advocates on record, Messrs Okello Kinyanjui & Company Advocates Mombasa, to lodge an Application dated 10th February, 2026 seeking the striking out of the Plaintiff's suit as he, being only a director of the contracting entity, had been sued in his personal capacity and was therefore non-suited as what was the subject of the sale agreement dated 16th December, 2022 were shares in a company known as Madita Company Limited. c) He had instructed his aforesaid advocates to lodge an Appeal against the Court’s Ruling/Order dated 29th January, 2026 to the Court of Appeal, and had timeously lodged a Notice of Appeal dated 9 th February, 2026. Annexed hereto and marked as “DW RULING: ELC SUIT NO. E005 OF 2025 Page 3 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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– 1” was a true copy of the Notice of Appeal dated 9 th February, 2026. d) The Appeal challenged the findings by the court that his Notice of Motion Application dated 10 th February, 2025, was unmerited and subsequently merited for dismissal with costs to the Plaintiff. e) He was advised by his aforesaid advocates that the Appeal challenged the injunctive reliefs and the court's substantive findings on the proprietary rights of Madita Company, a party not enjoined in the suit, in the Ruling delivered on 29th January, 2026, which if not challenged before the Court of Appeal, the company would have no forum to articulate and protect its interests and would therefore have been condemned unheard, which act would mean that they were subsequently barred from raising the matter at the hearing of the suit, or otherwise. f) He was advised by his aforesaid advocates on record that the Plaintiff had, together with the suit, filed a Notice of Motion Application dated 23rd January, 2025 seeking injunctive reliefs against himself and Madita Company Limited, but failed to enjoin them in the suit. RULING: ELC SUIT NO. E005 OF 2025 Page 4 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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g) He was informed by his aforesaid advocates on record, which information he verily believes to be true, that a company, its property, assets and liabilities were a separate entity from its director. h) He was advised by his aforesaid advocates on record, that the Ruling to his Notice of Motion Application dated 10 th February, 2025 was pronounced on the 29th January, 2026. i)The terms of the Ruling were relayed to the Affiant by his aforesaid advocates, and being aggrieved and dissatisfied with the same, he instructed his advocates to lodge an appeal against the Ruling. j)Particulars of breach of the said agreement on the part of the Plaintiff were:i. The Plaintiff remained in occupation of the suit property since the year 2022, despite not having paid a single coin, pursuant to the Agreement dated 16th December, 2022. ii. The Plaintiff had been using the premises for business purposes and would remain in possession during the stay period, thus offering adequate security in case the Appeal was found unmeritorious. RULING: ELC SUIT NO. E005 OF 2025 Page 5 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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k) He was advised by his aforesaid advocates on record, that leave to Appeal was granted by the court immediately after the pronouncement of the Ruling. l)That no stay of execution nor proceedings was granted by the court at the time of delivery of the Ruling. m) He was advised by his aforesaid advocates on record, if the stay of execution of the aforesaid Ruling/Order and proceedings was not stayed and any consequential orders not vacated and/or stayed, the court would proceed with the substantive hearing of the suit slated for 29 th September, 2026 despite the Appeal lodged thereby causing great prejudice to himself, as the property of the company known as Madita Company Limited would have been determined without being heard, which act would not only occasion substantial loss but the aforesaid Appeal would be rendered nugatory and a mere academic exercise. n) He was advised by his aforesaid advocates on record, the Plaintiff/Respondent would suffer no real prejudice if this application was allowed since the Plaintiff remained in occupation of the suit property since the year 2022, RULING: ELC SUIT NO. E005 OF 2025 Page 6 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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despite not having paid a single coin, pursuant to the Agreement dated 16th December, 2022 and has been using the premises for business purposes and would remain in possession during the stay period, thus offering adequate security in case the Appeal is found unmeritorious. o) He was advised by his advocates on record, that this Application had been made without unreasonable delay as the Ruling was delivered on 29th January, 2026 and the matter slated for Mention on 20 th April, 2026 for purposes of taking Pre-Trial directions. p) He was by his advocates on record that the Honourable Court was indeed espoused with wide and unfettered discretion to grant the orders sought herein. q) He swore this affidavit in support of the application herein seeking stay of the Ruling dated 29 th January, 2026 and all consequential orders delivered on 29 th January, 2026, pending the hearing and determination of the instant application as well as the hearing and determination of the preferred appeal both of which he verily believes are meritorious. RULING: ELC SUIT NO. E005 OF 2025 Page 7 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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r) What was deponed to hereinabove was true to the best of his knowledge, information and belief save where otherwise stated the source and grounds duly disclosed. III. The Response to the Defendant’s Application 6. As indicated above, the Plaintiff/Respondent opposed the Applicant’s Notice of Motion application via Grounds of Opposition dated 10th April, 2026, and through comprehensive written submissions. The contentions raised against the grant of stay orders are summarized as follows: a) Defective and Incompetent Application: The Respondent contends that the application never lied, was superfluous, fatally defective, misconceived, lacked merit, and amounts to a grave abuse of the judicial process. b) Functus Officio and Jurisdictional Overreach: The Respondent argued that this Court was functus officio. Citing the classic decision in “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd (1989) eKLR”, it was urged that jurisdiction is everything and the court must down its tools. The Respondent RULING: ELC SUIT NO. E005 OF 2025 Page 8 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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maintained that a superior judge could not sit on appeal over their own decision. c) Delaying Tactics: The application is perceived purely as a delaying tactic designed to stall the determination of the main suit on its merits, which is already fixed for hearing on 29th September, 2026. d) Res Judicata and Forum Shopping: The Respondent submitted that the application was res judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21. It was alleged that the Applicant was engaging in forum shopping and taking “multiple bites of the cherry” by concurrently seeking identical stay remedies before the Court of Appeal while a Notice of Appeal was pending. e) Equity and Unclean Hands: The Respondent argues that the Applicant had offended the rules of equity— specifically that he who seeks equity must do equity and must come with clean hands. It was further asserted that the Applicant held no legal right or title to the suit property. RULING: ELC SUIT NO. E005 OF 2025 Page 9 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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f) Preservation of the Substratum: The Respondent claimed that the initial decision of 29th January, 2026, was judicious and sound because it safely preserved the suit's subject matter. Overturning or staying this status quo would allegedly prejudice the Respondent and expose her to unlawful eviction. g) Failure to Prove Claims: Relying on the provision of Sections 107, 108, and 109 of the Evidence Act, Cap. 80, the Respondent asserted that the burden of proof lies on the Applicant, who had fundamentally failed to provide cogent, evidentiary backing to substantiate his claims of substantial loss. IV. 7. Submissions On 13th April, 2026 while the Parties were present in Court, they were directed to have the Notice of Motion application dated 26th February, 2026 be disposed of by way of written submissions and all the parties complied. 8. Pursuant to that all the parties obliged and a ruling date was reserved on notice. Eventually, it was delivered on 28 th September, 2026 by Court accordingly. RULING: ELC SUIT NO. E005 OF 2025 Page 10 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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A. The Written Submissions by the Defendant/Applicant 9. The Defendant/Applicant through the Law firm of Mesrs. Okello Kinyanjui & Company LLP Advocates filed his written submission dated 5th May, 2026. Mr. Kinyajui Advocate commenced his submissions by stating that before the Court was the Notice of Motion Application dated 26 th February, 2026. It sought the afore – stated orders. 10. The Learned Counsel averred that prayer numbers 1, 2 and 3 had already been dispensed with, the Applicant would not urge this Honourable Court on the same. The Application was premised upon the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 and the other enabling provisions of the law as set out on the face of the Application, and supported by the Affidavit of Mr. Dieter Wellendorf, dated 26th February, 2026. Sub - rule (1), whereof, provides:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 RULING: ELC SUIT NO. E005 OF 2025 Page 11 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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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. 11. According to the Learned Counsel, it was therefore the duty of the party craving the exercise of discretion in his favour to establish and demonstrate sufficient cause for grant of the order for stay of proceedings. On what then was the sufficient cause or the alternatively, which parameters were available that a party must surmount to invoke the court’ s discretion in its favour. To buttress on this point, he cited the case of:- “Wachira Karani – Versus - Bildad Wachira (2016) KEHC 6334 (KLR)”, the constituents of a sufficient cause, were set out. The Court cited the Court of Appeal of Tanzania case, “The Registered Trustees of the Archdiocese of Dar es Salaam – Versus - The Chairman Bunju Village Government & Others” discussing what constitutes sufficient cause had this to say:“It is difficult to attempt to define the meaning of the words ‘sufficient cause’. It is generally accepted however, that the words should receive a liberal construction in RULING: ELC SUIT NO. E005 OF 2025 Page 12 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant.” 12. And citing Supreme Court of India in the case of “Parimal – Versus – Veena” the Learned Judges observed that:“.. Therefore the word ‘sufficient’ embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man.” 13. The Court proceeded to contextualize the same and stated: ... “sufficient cause” means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case ...” However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously” 14. Thus, the learned Counsel, submitted that the lodging of the Notice of Appeal, before the Court of Appeal, is sufficient cause to warrant the court’s exercise of its inherent, discretionary powers as prayed in the Application. The court in the case of:- “Mwariama & 18 others (Suing on Their Behalf and on Behalf of About 3,000 Residents of Timau Area in Buuri Subcounty, Meru County) – Versus RULING: ELC SUIT NO. E005 OF 2025 Page 13 of 52 National HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Land Commission & 5 others; Meru County & another (Interested Parties) [2025] KEELC 8309 (KLR)”, at paragraph 36, found that the compliance with the conditions precedent to the lodgement of an appeal, were adequate sufficient cause, and held: “Back to the issue of whether sufficient cause has been established? I have pointed out that the applicants have since filed/lodged a notice of appeal in accordance with the provisions of section 77 of the court of Appeal Rules 2022. Moreover, the applicants have also filed a letter bespeaking the proceedings. In short, the applicants have established a sufficient cause on the basis of a timeous notice of appeal filed in accordance with the Court of Appeal Rules.” 15. The Learned Counsel asserted that this Court under the provisions of Section 3A of the Civil Procedure Act, Cap. 21 had unlimited and inherent jurisdiction to entertain an Application seeking stay of proceedings. The said provision states: Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. RULING: ELC SUIT NO. E005 OF 2025 Page 14 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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16. The Court of Appeal in “Butt – Versus - Rent Restriction Tribunal (1979) eKLR”, on the exercise of its unlimited discretion, posited: “It is the discretion of the court to grant (stay)... The discretion should be exercised in such a way as not to prevent an appeal...(sic)” 17. Such discretion was unfettered. The only fetter being that the jurisdiction must be exercised in the interest of justice. Once an Applicant had satisfied the mandatory terms of the provision of Order 42 Rule 6, then the Court's discretion was for grant. 18. On whether the applicant had provided sufficient cause of grant of the order for stay of proceedings. The Learned Counsel submitted that upon the delivery of the Ruling on 29th January, 2026, the Applicant being aggrieved by the decision and findings of the Court, duly instructed his advocates on record to lodge an appeal against the said ruing. Leave to appeal, was granted by the court upon the pronouncement of the ruling on even date. 19. On whether to grant the orders staying the proceedings, is an exercise of discretion. The key and paramount objective of the exercise, being the preservation of the Res, or RULING: ELC SUIT NO. E005 OF 2025 Page 15 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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dispute pending the determination of the appeal. The guiding principles were set out in the provision of Order 42 rule 6 of the Civil Procedure Rules. The Rules, contemplated that an Appeal must had been lodged before the Orders were granted, it reads: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. 20. On whether an appeal had been lodged. The Learned Counsel submitted that the Notice of Appeal dated 9 th February, 2026, was timeously filed on even date, well within the statutory 14 day provisions of Rule 77 of the Court of Appeal Rules 2022. Similarly, the request for copies of certified typed proceedings, Ruling and Order, was made, promptly, vide letter dated, 2nd February, 2026. 21. On whether the Applicant would suffer any substantial loss if the orders for stay of proceedings were not granted. The Learned Counsel contended that the inherent power of the court, to stay proceedings was discretionary and unfettered. It is the jurisdiction that was meant to enhance the courts overriding objective principles, and to see that justice was administered to all. The test to be applied, by RULING: ELC SUIT NO. E005 OF 2025 Page 16 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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the court in administering its unfettered discretion, was to consider whether what was sought to be stayed if allowed to happen was reversible or if the entire Substratum of the Appeal would disappear resulting into irreversible prejudice, absent an order for stay. 22. The Court of Appeal in the case of:- “Alba Petroleum Limited – Versus - Total Marketing Kenya Limited (2019) eKLR” , at Paragraph 33, cited the Supreme Court's Decision in the case of:- “Mawathe Julius Musili – Versus - Irshadali Sumra & Others, Petition No. 16 of 2018” at Paragraph 94 and 95 of its Judgment observed that:“... when no appeal is lodged as against an interlocutory ruling by a trial court, the issue in dispute is settled by judicial decision.” 23. Similarly, the provision of Section 68 of the Civil Procedure Act, Cap. 21 provides that:Where a party aggrieved by a preliminary decree does not appeal from that decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. 24. According to the Learned Counsel, it was therefore trite law, that any interlocutory decision, for which no appeal is preferred, the issue as appertains the matter in question is RULING: ELC SUIT NO. E005 OF 2025 Page 17 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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settled, permanently as against the parties, and that the contents of such ruling cannot be raised subsequently or mount an appeal upon, the final determination of the suit on merits. In “the Mawathe”, decision, cited by the Court of Appeal in the “Alba case (Supra)”, the Supreme Court delivered itself on a party that failed to challenge the substantive orders made against it at the interlocutory stage and held:‘……guided by the decision of this court in ...and bound by the supreme court dicta, in ....we find that the failure by the appellant to appeal against the ruling of Mwera J....makes this court lack jurisdiction to re-open...the issue...as determined on merit, in his ruling. The issue... was conclusively determined by the ruling of...’ 25. Further the Court pronounced itself on the interlocutory applications, before it, vide ruling dated the 29 th January, 2026. The applicant feeling aggrieved by the holdings thereof, timeously lodged an appeal against the findings of the court. It was the applicants contention that the ruling ,effectively alienates the property of an entity not party to the suit, nor enjoined in the suit, and further makes substantive findings detrimental, and prejudicial to the Applicant, at an interlocutory stage, and therefore contends RULING: ELC SUIT NO. E005 OF 2025 Page 18 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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that if the proceedings, slated for hearing on the 29 th September, 2026, are not stayed pending the hearing of the appeal against the said ruling, the substratum of the appeal and the entire suit will have been defeated, thus causing immense injustice and substantial loss to the appellant who, as per the dicta, in the supreme court decision in the “Mawathe case (Supra)” would be barred from raising the issues relating to the findings subsequently. 26. The Learned Counsel answered the question of what should then be the substantial findings that must be vacated before the trial proceedings and proceeded to state that the principles upon which the discretion of the court are underpinned, must be mounted by the affidavit in support of the motion, in addition the requirements, set out in the provision of Order 42 rule 6, satiate, those by judicial decisions. A party desirous of the orders must therefore demonstrate that exceptional prejudice would occasion if the proceedings were allowed to take the normal course. 27. In the case of:- “Landmark Holdings Limited – Versus - Boleyn Magic wall Panel Limited & RULING: ELC SUIT NO. E005 OF 2025 Page 19 of 52 Ano (2024) 646 (KLR)” at HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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paragraph 31, the Court set out the applicable principles, and stated: The only issue necessary for determination would be whether the application seeking stay of proceedings is merited. This Court's discretion in deciding .whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles; a) Whether the applicant has established that he/she has a prima facie arguable case. b) Whether the application was filed expeditiously and c) Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought 28. According to the Learned Counsel it was instructive, therefore that an Appellant, in addition to the principles set out in the civil procedure rules, was required to demonstrate that the Appeal was not frivolous (one arguable bonafide ground was enough.) The Affiant has inter alia deponed in the Affidavit in Support of the Notice of Motion Application dated 26th February, 2026, at Paragraph 4, as to the gravamen of the intended Appeal, to wit:“...the Appeal challenges the injunctive reliefs and the court’s substantive findings on the proprietary rights of Madita Company, a party not enjoined in the suit....which RULING: ELC SUIT NO. E005 OF 2025 Page 20 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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if not challenged before the Court of Appeal, the company will have no forum to articulate and protect its interests and will therefore have been condemned unheard, which act will mean that they are subsequently barred from raising the matter at the hearing of the suit...” 29. The Applicant is also aggrieved by several findings which were substantive and conclusive in nature and the exercise of the courts discretion in favour of the Applicant despite observing that no single coin had been paid in furtherance of the terms of the Agreement. At Paragraphs 243 - lines 12-14, the Court observed: “The Plaintiff's failure to perform her contractual obligations disentitles her from equitable relief.” 30. Similarly, the Applicant believed that the finding, at an interlocutory stage, that the Plaintiff had acquired proprietary rights over property owned by Madita Companywho were not party to the proceedings, needed the scrutiny of the Court of Appeal, lest the same became barred as per the “Mawathe Supreme Court dicta supra” ( Paragraph 258 of the Ruling and Order number (B), they quoted from the ruling, to wit; “The Plaintiff is the registered proprietor with original Certificate of Lease, while the Defendants” titles are prima facie impeachable.” RULING: ELC SUIT NO. E005 OF 2025 Page 21 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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31. The Court of Appeal would also be expected to interrogate and determine itself on legal position of an agreement that had been rescinded vis a vis the parties - does it revert the parties to the Status Quo Ante as set out in the Blacks Dictionary or does it just affect future operations of the same. 32. On the inordinate delay. The Learned Counsel averred that the Defendant/Appellant feeling aggrieved by the ruling of the Court on 29th January 2026 lodged a Notice of Appeal dated 9th February, 2026 timeously. The Record of Appeal too, dated 25th February, 2026 was filed timeously and had been served upon the Respondent both digitally and physically. The lodgment of the Notice of Appeal in accord with the provisions of Section 77 of the Court of Appeal Rules constituted the Appeal for the purpose of an application for stay. The Court proceeded to cite the House of Lords decision in the case of:- “Roger – Versus - Comptoir de Paris” where their lordship, in reiterating their calling to administer, justice, observed thus:“one of the first and highest duties of all courts, is to take care that the act of the court does no injury to any of the suitors...” RULING: ELC SUIT NO. E005 OF 2025 Page 22 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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33. Further the Learned Counsel submitted that the orders prayed for in the Application dated 26 th February, 2926 were meritorious. The Applicant had real apprehension that once the suit proceeds to pre trials and hearing., the Appeal would be rendered nugatory and the Defendant denied his constitutionally given right to appeal. B. The Written Submissions by the Plaintiff/Respondent 34. The Plaintiff/Respondent through the Law firm of Messrs. Kurauka & Co. Advocates filed their written submissions dated 19th June, 2026. Mr. Kurauka submitted that the Court rightly granted the orders herein and set the matter for hearing hereof. Unless appropriate orders granted were retained hereof, the Applicant/Defendant would proceed to evict the Plaintiff thus rendering the substratum of this matter to disappear and cause the Plaintiff to suffer grave prejudice, loss thwarted all negotiations and the damage. Plaintiff’s and The Applicant/Defendant efforts resolved through Arbitration hereof. The Applicant/Defendant elected to appeal against the decision vide a Ruling of this Honourable Court. The appeal was RULING: ELC SUIT NO. E005 OF 2025 Page 23 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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pending by dint of a Notice of Appeal thereof. The Applicant could not pursue similar remedies in different forums contemporaneously. The Applicant/Defendant, certainly was not entitled to have the Honourable Court exercise the discretion created by the Civil Procedure Act or any other law particularly the provision of Order 45 Civil Procedure Rules on factors to be satisfied by a party seeking review of a decree or order having preferred an appeal by dint of filing a Notice of Appeal which automatically gives the Court of Appeal jurisdiction over the decision appeals hereof. 35. The Learned Counsel denied the jurisdiction of the Court and went further to submit that the Honourable Court has no jurisdiction to sit on appeal of its decision and must down its tools against the Applicant/Defendant because it was “functus officio” and jurisdiction is everything as was held in in the locus classicus decision in Kenya on jurisdiction in the celebrated cases below; 36. “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd (1989) eKLR” where the late Justice Nyarangi of the Court of Appeal held as follows: - RULING: ELC SUIT NO. E005 OF 2025 Page 24 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 37. From the Court Records, the application herein was re judicata. Further, the Application herein should be struck out because it offended the provision of Section 7 of the Civil Procedure Act, Cap. 21 on the res judicata doctrine. The res judicata doctrine served the salutary purpose of finalizing litigation otherwise litigation could never come to an end. The doctrine gaven litigants closure and respite from the spectre of being vexed, haunted and hounded by multiple similar issues in a suits that have been determined by a court clothed with jurisdiction to make a decision thereof. This saved costs, resources, wastage of time and other consequences of endless litigations. 38. The Learned Counsel urged this Honourable Court to down its tools against a party who abuses court process by filing RULING: ELC SUIT NO. E005 OF 2025 Page 25 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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multiple suits in pursuit of the same cause of action. The application was tantamount to forums shopping by filing multiple suits in different courts raising similar issues contrary to the provision of Section 6 of the Civil Procedure Act. 39. On the grounds to oppose the Defendant’s Notice of Motion application dated 10th April, 2026, the Learned Counsel submitted that the Plaintiff relied on the following orders:1) The Application dated 26th February, 2026 does not lie, is incompetent, superfluous, fatally defective, misconceived, an abuse of the court process, lacks merits and tantamount to grave abuse of this court process and ought to be dismissed in limine. 2) The superior judge could not sit on its own appeal. It was functus officio. Justice must come to an end. The Applicant has offended the law of equity to wit; He who seeks equity must do equity and he who comes to equity must come with clean hands. They have no right or title to this land. 3) The Applicant's application is a delaying tactic of this matter which is pending for hearing on merits on 29 th September, 2026 for determination on merits. 4) The Court of Appeal has no original jurisdiction to grant the orders contemplated by the Applicant prior to the said hearing and delivery of Judgment. 5) The decision dated 29th January, 2026 was judicious and sound because it preserves the substratum of this matter RULING: ELC SUIT NO. E005 OF 2025 Page 26 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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pending the hearing and determination on merits by this Honourable Court. 6) It will not be in the interest of justice, preservation of the substratum hereof and seamless judicial process that the interim reliefs granted do remain in force pending a hearing and delivery of judgment hereof. 7) This orders sought by the applicant are superfluous and inconsistent. This Court cannot stay a valid decision that preserves the subject matter hereof. There has been existing orders since the first directions of this Court and the Applicant has never appealed against those orders that were extended. 8) The Application offends the principle giving judicial officers a right to render judicial decisions with finality within their jurisdiction under Articles 159, 160 and 162 of the Constitution. 9) This Honourable Court enjoys absolute judicial powers and immunity pursuant to section 6 of the Judicature Act and Article 160 (5) provides that a member of the judiciary is not liable in an action or suit for anything done or omitted in good faith while lawfully performing a judicial function. 10) The Applicant has filed an appeal and has sought stay thereat. The court must frown and down its tools on a party who abuses the court process by having multiple bites through fishing expedition, filing multiple suits over the same subject matter; crosses the road for forums shopping seeking same reliefs in different courts. 11) The Applicant has blatantly concealed material facts to this Honourable Court. The Applicant has sought stay at the Court of Appeal hereof. 12) The Applicant commenced an Appeal in the Court of Appeal through a Notice of Appeal which is pending in RULING: ELC SUIT NO. E005 OF 2025 Page 27 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Court. The Court of Appeal proceedings should be let to have their own lives. 13) CONSEQUENTLY, they persuaded this Honourable Court to dismiss the application dated 26th February, 2026 with costs 40. On the case law and court precedents, the Learned Counsel submitted that the Applicant sought MANDATORY injunction at the interlocutory stage trough his application dated 10 th February, 2025. This new application is res judicata and a gross abuse of the court process hereof. The effect of the prayers sought is to render this suit determined at interlocutory stage. This will be prejudicial to the Plaintiff hereof. The Defendant's application is RES JUDICATA, incompetent, an afterthought, premature and an abuse of the court process because it was filed after service of the suit documents. 41. This Honourable Court ought to be reluctant in granting mandatory injections as was held in the case of “Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority and 3 others [KEELC 7409 (KLR 2024)” by this Learned Court, Naikuni J in a different jurisdiction:- RULING: ELC SUIT NO. E005 OF 2025 Page 28 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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'.....the Notice of motion is hereby found to have merits and it is hereby allowed as per the court discretion and the preservation of the suit property save for prayers (c ) and (e) of the application which seek for the mandatory permanent injunctive orders at the interlocutory stage of the proceedings......pending the hearing and determination of the suit, there be and is hereby issued an order of temporary injunction to retrain the Defendant, their officers, employees, assigns, agents or any other person acting for them and on their instructions from revoking the Plaintiff's title........' The Defendant's prayers lack a substantive suit upon which they are anchored and must fail ab initio. The Courts have rightly taken the position that substantive orders cannot be issued in Miscellaneous Applications. This is the position adopted by Limo J in Witmore Investment Limited – Versus - County Government of Kirinyaga & 3 others [2016]eKLR In Anastacia Wagiciengo – Versus - Ezekiel Wafula [2018] eKLR, the Court held that an order in the nature of a Mandatory injunction must be supported by a substantive relief in the main pleading.” 42. The Supreme Court of Kenya in the case of:- “John Florence Maritime Services Ltd & Another – Versus - Cabinet Secretary Transport & Infrastructure & 3 others in Petition No. 17 of (2015)(2021) KESC 39 (KLR) (C 40) 9 th August (2021) Judgment” the court stated that a plea of res judicata holds that once the legal rights of parties have been judicially determined, such edit stand as conclusive statement as to RULING: ELC SUIT NO. E005 OF 2025 Page 29 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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those rights. That in effect, it allows a litigant only one bite at the cherry and prevents a litigant or persons claiming under the same title from returning to court to claim further reliefs not claimed in the earlier action. That it serves the cause of order and efficacy in the adjudication process, by preventing a multiplicity of suits which would ordinarily clog courts... 43. In the case of “Joseph Gichanga – Versus - Co-Operative Bank Ltd [2006] eKLR” where it was held as follows: “....courts have a duty to intervene where there was clear breach of the law and it matters not whether monetary compensation is available..............” 44. The principles laid down in the case of “Giella – Versus Cassman Brown [1973] EA 358” apply hereof. In the case of “Margaret Njeri Muiruri – Versus - Bank of Baroda (K) Limited [2014] eKLR” where it was held by the Court of Appeal as follows: “....failure to avail information on interest rate to the borrower was unfair and lenders do not have unfettered discretion in their conduct to borrowers to act unfairly to charge exorbitant interest......” “The court acknowledged that while there was freedom of contract, it was not within the power of the lender to unilaterally change terms without even notifying the borrower of the change because the borrower had been deprived of his legal rights of prepayment or seek better RULING: ELC SUIT NO. E005 OF 2025 Page 30 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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terms from another lending institution of their choice............” 45. In the case of “Samuel Kamau Macharia & Another – Versus Kenya Commercial Bank & 2 others (2012) eKLR” where the Supreme Court expressed itself as follows; “...A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law...” 46. In the case of “Dream Camp Kenya Ltd – Versus - Mohammed Eltaff and 3 others Civil Appeal No. 170 of 2012” the court held that: “Every litigation is inconvenient to every litigant in oneway or another. Also no one in his right senses enjoys being sued or ipso facto no one cherishes litigation of any nature unless it is absolutely necessary. With respect, we accept litigation is expensive and no litigant would enjoy the rigors of trial. The aftermath of vexatious and frivolous litigations is normally taken care of by way of costs. The discomfort of litigation would not certainly render he succeeds of the intended appeal nugatory if we do not grant the application sought. If the Learned Judge is eventually found wrong on appeal, and the applicant succeeds in its intended appeal, then the orders so made by the Learned judge would be quashed and the applicant would be compensated for in costs.” RULING: ELC SUIT NO. E005 OF 2025 Page 31 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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47. The Court of Appeal held that the provision of Section 23 (1) of the Registration of Titles Act (Cap 281) gives an absolute and indefeasible title to the owner of the property. 48. On the statutory provisions relied upon, the Learned Counsel submitted that the provision of Article 40 of the Constitution of Kenya provides that:1. That subject to Article 65, every person has the right, either individually or in association with others to acquire and own property: a) of any description; b) in any part of Kenya 3. The State shall not deprive a person of property of any description or of any interest in or right over property of any description unless deprivation; a. Results from an acquisition of land or an interest in land or a conversion of an interest in land or title to land in accordance with chapter 5; or b. Is for public purpose or in the public interest and is carried out in accordance with this constitution and any act of parliament that i. Requires prompt payment in full, of just compensation to the person; ii. Allows any person who has an interest in or right over that property, a right of access to a court of law RULING: ELC SUIT NO. E005 OF 2025 Page 32 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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49. According to the Learned Counsel the Applicant has not performed under the provision of Section 107 of the Evidence Act, Cap. 8) provides that whoever desires the court to give judgment on the basis of existence of certain facts, must prove that such facts exist. Further, section 108 provides that the burden of proof in a suit or civil proceedings lies on the person who would fail if no evidence was led at all by either party. The Applicant/defendant failed to prove its allegations in the Replying Affidavit. Section 109 of the Act provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. In that case, the Applicant/defendant has failed to establish its allegation through cogent evidence. The burden of proof, therefore, shifted to the Applicant/defendant on the issues it raises in its defence. 50. The Learned Counsel submitted that the Plaintiff would rely on the following Statutes and constitution: a) The Constitution of Kenya. b) The Environment and Land Court Act, 2011. c) The Land Act, 2012. RULING: ELC SUIT NO. E005 OF 2025 Page 33 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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d) The Land Registration Act, 2012. e) The Civil Procedure Act & Rules. f) The Evidence Act. g) The Banking Act. h) The Companies Act. 51. In conclusion, the Learned Counsel stated that at this stage, the Respondent/Plaintiff was only required to raise a prima facie case with probabilities of success. She was able to persuade this Honourable Court to grant reliefs to preserve the substratum of this matter. Consequently, they persuaded the Honourable Court to find that Applicant had established a prima facie case and grant the Notice of Motion application dated 26th February, 2026 as prayed. The actions by the Applicant/Defendant would defeat justice, continue to violate the Plaintiff's rights and to render the substratum of this suit to disappear and cause the Plaintiff to suffer grave prejudice and irreparable loss thereof. 52. They persuaded the Court to dismiss the Defendant’s Notice of Motion application dated 26th February, 2026 which was an afterthought and aimed at rendering the Plaintiff's suit nugatory or overtaken by events hereof. RULING: ELC SUIT NO. E005 OF 2025 Page 34 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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V. Analysis and Determination 53. I have keenly considered the Notice of Motion application, the supporting testimony of the Applicant, the grounds of opposition, and the rival legal written submissions and the plethora of cited authorities, the relevant provision of the Constitution of Kenya, 2010 and the Stature. 54. In order to attain an informed, reasonable and fair decision, the Honorable Court has condensed the subject matter into three ( 3 ) salient issues for its determination. These are:a. Whether this Court has the requisite jurisdiction to grant a stay of its own proceedings and rulings after a Notice of Appeal has been timeously lodged. b. Whether this Court has the requisite jurisdiction to grant a stay of its own proceedings and rulings after a Notice of Appeal has been timeously lodged. c. Who bears the Costs of the Notice of Motion application dated 26th February, 2026. ISSUE No. a). Whether this Court has the requisite jurisdiction to grant a stay of its own proceedings and rulings after a Notice of Appeal has been timeously lodged 55. Under this Sub – heading, the Honourable Court will decipher on the substratum of the matter which is whether this Honourable Court has the requisite jurisdiction to grant RULING: ELC SUIT NO. E005 OF 2025 Page 35 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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a stay of its own proceedings and rulings after a Notice of Appeal has been timeously lodged. As a scathing attack, the Respondent has argued intensely that this Court is “functus officio’ and must down its tools immediately, placing reliance on the celebrated decision of Nyarangi, JA in “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd (Supra)”. 56. While this Court strictly guides itself by the legal rationale of the Lillian “S” doctrine, the Respondent’s assertion that a trial court loses jurisdiction to manage its proceedings or issue stay orders post-ruling is a misapplication of the law. The jurisdiction to stay proceedings pending an appeal is explicitly granted by the provision of Order 42 Rule 6 of the Civil Procedure Rules [2] and safeguarded by the court's inherent powers under the provision of Section 3A of the Civil Procedure Act, Cap. 21. 57. The binding precedent in “Butt – Versus - Rent Restriction Tribunal (Supra)” clears any ambiguity. The Court of Appeal held that a trial court possesses unfettered discretion to grant a stay of its own orders to ensure that an intended appeal, if successful, is not rendered a hollow otiose, RULING: ELC SUIT NO. E005 OF 2025 Page 36 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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abstract and academic exercise. The High Court in the case of:- “William Odhiambo Ramogi & 2 Others – Versus - the Honourable Attorney General & 3 Others [2019] eKLR” to be considered in an application such as this. They are 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 inordinately delay trial, 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 having the case RULING: ELC SUIT NO. E005 OF 2025 Page 37 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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concluded and all arising grievances taken up on a single appeal; and f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.” 58. An additional consideration per the Court in the case of:“Muchiri – Versus - Tharamba & 3 Others [2025] KEELC 6822 (KLR)” is as follows: “Butt – Versus - Rent Restriction Tribunal [1979] eKLR”. It was put thus by the Court of Appeal: - “It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett LJ in Wilson – Versus - Church (No 2) 12 Ch. D ([1879] 454 at P 459. In the same case, Cotton LJ said at P 458: “I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”” 59. Similarly, in the already cited case by Learned Counsels of “Landmark Holdings Ltd – Versus - Boleyn Magic Wall Panel Ltd (Supra)”, it was affirmed that a court exercises its judicial discretion to determine whether a stay is in the RULING: ELC SUIT NO. E005 OF 2025 Page 38 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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interest of justice, weighing the preservation of the dispute against the need for finality. 60. Litigation follows a clear and predictable path from commencement to conclusion and appeal. An order staying proceedings interferes with this clear and predictable process for conducting litigation. Viewed solely from the perspective of the provision of Article 159(2)(b) that “justice shall not be delayed”, and coupled up with the Overriding Objectives under the provision of Sections 1A and 3A of the Civile Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court, No. 19 of 2011 to wit: “The principal objective expeditious, of this proportionate, Act is to affordable resolution of disputes……” Hence, enable and the just, accessible a stay of proceedings may appear undesirable. However, the exercise of judicial authority is geared towards the fair and just determination of disputes, and, as such, despite the Court's aversion to halting proceedings on account of a pending appeal, in appropriate cases a stay may be warranted to avoid rendering the outcome of the appeal nugatory. RULING: ELC SUIT NO. E005 OF 2025 Page 39 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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61. To buttress the forgoing observation, it is appropriate to take cognizance of the decision of the Supreme Court of Kenya in the case of “Raila Odinga & 2 Others - Versus Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR”, citing with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in defining the doctrine, thus: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or 62. Other than the foregoing decision, the Doctrine of Functus Officio was also canvassed and underscored by the Court of Appeal in the case of “Telkom Kenya limited – Versus - John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR” , where the Court held thus: RULING: ELC SUIT NO. E005 OF 2025 Page 40 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon… The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division.” 63. Based on the foregoing observation, it is my humble view that the subject matter of this application does not amount to inviting this Honourable Court to revert back to the same issue it has dealt with before. 64. Therefore, by all means, this Court strongly discern that it is not functus officio”,. It remains legally clothed with the power to consider the application. ISSUE No. B). Whether this Court has the requisite jurisdiction to grant a stay of its own proceedings and rulings after a Notice of Appeal has been timeously lodged. 65. Under this sub title we shall examine whether this Court has the requisite jurisdiction to grant a stay of its own proceedings and rulings after a Notice of Appeal has been timeously lodged. To secure a stay of proceedings, an applicant must surmount the parameters of the provision of RULING: ELC SUIT NO. E005 OF 2025 Page 41 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 demonstrating sufficient cause. What constitutes sufficient cause was properly illuminated in “Wachira Karani – Versus Bildad Wachira [2016] KEHC 6334 (KLR)” , referencing regional common law standards: “The words ‘sufficient cause’ should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed to the appellant.” 66. Be that as it may, the Parameters of Stay of proceedings pending appeal were discussed extensively in the case of:“Kenya Wildlife Service – Versus - James Mutembei [2019] eKLR”. For coherence, the nature, scope, meaning and import of the stay was described thus: “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.” 67. On the other hand, Ringera J, as he then was, in the case of “Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000”, aptly captured the matters to be considered by the court in making its determination on stay RULING: ELC SUIT NO. E005 OF 2025 Page 42 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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of proceedings pending Appeal. He rendered himself as follows: “As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added) 68. Notwithstanding the foregoing, the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, are equally instructive: 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 proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will RULING: ELC SUIT NO. E005 OF 2025 Page 43 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 69. In view of the foregoing, it is imperative to note that a Party who seeks to accrue an order for stay of proceedings, pending an appeal, is obliged to place before the court exceptional circumstances, which may require that the proceedings before the trial court be stayed and/or suspended. In any event, it must also be noted that courts are enjoined to ensure that proceedings filed before them are heard and disposed of without undue delay. In this regard, it is imperative to take note of the provisions of Article 159 (2) (b) of the Constitution 2010, whose import and significance I have alluded to hereinbefore. 70. To buttress the observation alluded to in the preceding paragraph, I am minded to take guidance from the decision of the Court of appeal vide the decision in the case of “Said Sweilem Gheithan Saanum – Versus - Commissioner Of Lands (being sued through Attorney General) & 5 others [2015] eKLR”, where the court stated as hereunder; RULING: ELC SUIT NO. E005 OF 2025 Page 44 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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“Justice shall not be delayed” is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The principle cannot therefore be a panacea which heals every sore in litigation, neither is it a licence to parties to ignore or contravene the law and rules of procedure. 71. Before I conclude on the issue of stay of proceedings pending appeal; this Honourable court needs to examined whether of not there is a pending appeal and if the same is an appeal with a chance of success. There is no doubt that there is an appeal before the Court of Appeal. The Applicant needs to demonstrate that her appeal raises substantial questions for determination or is otherwise arguable. On what constitutes an arguable appeal, the Court of Appeal in “University of Nairobi – Versus - Ricatti Business of East Africa [2020] KECA 463 (KLR)”, had this to say: “We remind ourselves that on whether the appeal is arguable, the Applicant need not establish a multiplicity of grounds and it is sufficient if a single bona fide arguable ground of appeal is raised. See Damji Pragji Mandavia – Versus - Sara Lee Household & Body Care (K) Limited, Civil Application No. Nai 345 of 2004. RULING: ELC SUIT NO. E005 OF 2025 Page 45 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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8. An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous. See Joseph Gitahi Gachau & Another – Versus - Pioneer Holdings (A) Limited & 2 others, Civil Application No. 124 of 2008.” 72. The Applicant should also demonstrate that the appeal will be rendered nugatory if the stay of proceedings is not granted. In considering whether an appeal will be rendered nugatory, the Court of Appeal in the case of:- “Kinyanjui – Versus - Ketter & 5 Others [2013] KECA 378 (KLR)” stated as follows: “x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 73. The Applicant has satisfied this standard through two key components:A. Prevention of Substantial and Irreversible Legal Loss 74. The Applicant has correctly and rightfully so, argues that if the substantive trial proceeds as scheduled on 29 th September, 2026, while his interlocutory appeal is pending, he will face irreversible legal prejudice. The provision of RULING: ELC SUIT NO. E005 OF 2025 Page 46 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Section 68 of the Civil Procedure Act, Cap. 21 creates a rigid statutory preclusion as follows: “Where a party aggrieved by a preliminary decree does not appeal from that decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.” 75. In other words, it’s a replica of the Closure to the Noah’s Ark & the floods as founded in Holy Scripture - Genesis Chapters 6 to 9. Upon the closure of the main door, so does the story go, it could not be re – opened again!! The Court of Appeal in “Alba Petroleum Limited – Versus - Total Marketing Kenya Limited (Supra)”, binding itself to the Supreme Court dicta in “Mawathe Julius Musili – Versus Irshadali Sumra & Others (Supra)”, confirmed that when an interlocutory ruling on a substantive issue is left unchallenged by way of a stay and immediate appeal, the trial court’s decision becomes final and cannot be reopened later. At this juncture, I fully concur with the Learned Counsel for the Applicant to wit that, in so doing, the Principle of Natural Justice (on the two pillars of “Audi Alteram Partem” and Nemo Judex in Causa Sua” being condemned unheard) - and right of fair - hearing would be seriously curtailed. RULING: ELC SUIT NO. E005 OF 2025 Page 47 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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76. Because the Ruling of 29th January, 2026, made definitive determinations regarding the proprietary rights of a legal entity trading in the names and style of: “Madita Company Limited” (which ostensibly is a non-party), forcing the Applicant to proceed to full trial before the Court of Appeal determines this fundamental issue would wipe out the substratum of his appeal. This satisfies the requirement of substantial loss. B. Uncontroverted Affidavit Evidence 77. The Applicant deponed under oath that the Plaintiff has enjoyed commercial possession of the suit property since the year 2022 without paying any consideration under the contract, which serves as adequate security during the stay period. The Respondent opted to file only Grounds of Opposition and legal submissions, but failed to file a counter-Replying Affidavit to dispute these specific facts. 78. The Court of Appeal in the case of:- “Daniel Kibet Mutai – Versus - Attorney General [2019] KECA 125 (KLR)” laid down the absolute rule that grounds of opposition address only points of law. General legal arguments cannot impeach factual depositions made under oath; consequently, unRULING: ELC SUIT NO. E005 OF 2025 Page 48 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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contradicted affidavit facts are deemed admitted by the opposing party. 79. As Lord Cairns stated in “Roger – Versus - Comptoir D'Escompts De Paris”, the first and highest duty of all courts is to ensure that the actions of the court do no injury to any of the suitors. Denying a stay here would penalize the Applicant before his arguable appeal can be heard. ISSUE No. E). Who bears the Costs of the Notice of Motion application dated 26th February, 2026. 80. Under this sub title the Honourable Court shall examine the issue of costs on the Notice of Motion application dated 26 th February, 2026. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and RULING: ELC SUIT NO. E005 OF 2025 Page 49 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR” , the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 81. In the present matter, the costs of the Notice of Motion application dated 26th February, 2026 shall abide the outcome of the intended appeal. VI. Conclusion and Disposition. 82. Ultimately, having caused an indepth analysis to the farmed issues the Preponderance Honourable of Court is guided by the Probabilities and the balance of Convenience. It holds that the Applicant has timeously lodged a Notice of Appeal, raising serious triable issues regarding company law distinctiveness and personal nonRULING: ELC SUIT NO. E005 OF 2025 Page 50 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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suit status. A stay will not prejudice the Respondent, who remains in full commercial occupation of the premises. Consequently, it proceeds to provide the following specific and final orders as follows:a) THAT the Notice of Motion application dated 26 th February, 2026 filed by the Defendant/Applicant herein be and is hereby ALLOWED in terms of Prayer 4. b) THAT there be a stay of the Ruling and Orders of this Court dated 29th January, 2026, pending hearing and determination of the appeal lodged at the Court of Appeal. c) THAT there be a stay of further proceedings in ELC Suit No. E005 of 2025 pending determination of the said appeal. d) THAT the Plaintiff/Respondent shall remain in occupation of the suit property during the pendency of the appeal, as security against prejudice. e) THAT the hearing of the case scheduled on 29th September, 2029 be and is hereby vacated and deferred awaiting the outcome of the impugned appeal before the Court of Appeal. f) THAT the costs of this Application shall abide the outcome of the intended appeal. IT IS SO ORDERED ACCORDINGLY. RULING: ELC SUIT NO. E005 OF 2025 Page 51 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…… 28TH ……DAY OF ……SEPTEMBER……..2026. …………..……………………….. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: (a) Mr. Daniel Disi, the Court Assistant. (b)Mr. Kurauka Advocate for the Plaintiff/Respondent; and (c) M/s. Chege Advocate holding brief for Mr. Kinyanjui Advocate for Defendant/Applicant. RULING: ELC SUIT NO. E005 OF 2025 Page 52 of 52 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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