Samora Sikalieh (suing as the chairman of Karen & Langata District Association (KLDA)) v De La Salle Brothers & 5 others

3. It is deposed that the deponent is one of the Brothers of the Christian School/The De La Salle Christian Brothers, the applicant herein, and was at all material times the Project Coordinator of its development activities on the subject property cited below. 4. The deponent states that he is the one responsible for the development of LR No. 7943, being the property that is the subject of the Petition from which the intended appeal arises. 5. It is deposed that the Petitioner filed a Petition dated 30.8.2024 challenging the process that culminated in the issuance of the Physical Planning Development Permission to the Applicant on 17.11.2022, which petition sought, inter alia, the revocation of the said development permission and orders restraining any further development on LR No. 7943. 6. It is deposed that the Applicant subsequently filed a Notice of Motion dated 15.10. 2024 seeking, inter alia, the following orders: Page 2 of 27

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a. That this Honourable Court be pleased to strike out the Petition dated 30.8.2024 together with the Notice of Motion Application dated 30.8.2024. It is deposed that the Applicant sought the striking out of the Petition on, inter alia, the grounds that the suit has been instituted against both a non-existent party and a nonjuridical entity; that the Petition offends the doctrine of constitutional avoidance; that the matter was res judicata and amounted to re-litigation; that the Court lacks jurisdiction to determine the constitutionality of statutes; and that the suit offends the doctrine of approbation and reprobation. 7. It is further deposed that the Petitioner, described as the De La Salle Brothers, neither exists as a legal entity nor owns LR No. 7943 as alleged. 8. It is contended that the Petitioner is a non-juridical entity against which proceedings cannot properly be maintained, otherwise the Petition is unsustainable in law. Page 3 of 27 incurably defective and

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9. It is deposed that before filing the Petition, the Petitioner had lodged an appeal against the issuance of the Physical Planning Development Permission before the County Physical and Land Use Planning Liaison Committee on, inter alia, the following grounds: a. Non-compliance with the preconditions contained in the approval letter dated 17.11.2022; b. Failure to give due consideration to the Karengata Local Physical Development Plan (LPDP); c. Failure to consider the objections raised by the KLDA, the Residents Association and the 41 residents who had objected to the proposed change of user; d. The development would place undue strain on the existing facilities and amenities in the area; and e. Failure to notify the KLDA and its Residents Association of the County’s approval. 9. It is deposed that the Applicant had responded to the appeal, disputing the allegations made by the Petitioner and, in particular, challenging the filing of the appeal outside the prescribed period. Page 4 of 27

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It is averred that the Liaison Committee subsequently rendered its determination on 20.8.2024 and upheld the Preliminary Objection. The Committee consequently made, inter alia, the following findings: i. The appeal was struck out for being time-barred, with no order as to costs. ii. The County Executive Member responsible for the planning authority was advised to maintain a register of all applications and documents submitted to the County in respect of development permissions, and to ensure that the same is accessible to the public for scrutiny in accordance with Section 62 of the Physical and Land Use Planning Act, 2019. 10. It is deposed that following the determination of the Liaison Committee, the Petitioner neither lodged an appeal against the decision nor sought leave before the Environment and Land Court to appeal out of time, as was available to it. 11. Instead, the Petitioner opted to institute a Constitutional Petition seeking substantially similar reliefs to Page 5 of 27

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those it had sought before the Liaison Committee, together with additional prayers arising from the Committee’s determination. 12. It is deposed that by instituting the Petition in those circumstances, the 1st Respondent violated the doctrine of constitutional avoidance by invoking the constitutional jurisdiction of the Court notwithstanding the existence of an alternative statutory dispute mechanism specifically established to address the grievances raised in the Petition. 13. It is deposed that matters relating to Development Permissions ought to have been dealt with pursuant to Sections 61(3) and (4) of the Physical and Land Use Planning Act, Cap. 303, Laws of Kenya, while issues relating to the environmental impact of the proposed development ought to have been addressed in accordance with Section 58(1) of the Environmental Management and Co-ordination Act, Cap. 387, Laws of Kenya. 14. It is further deposed that the fact that the Petitioner had already invoked the statutory appellate mechanism under Section 61(3) of the Physical and Land Use Planning Act by Page 6 of 27

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appealing to the Liaison Committee, and thereafter filed the Petition in disregard of that statutory framework, amounts to approbation and reprobation and constitutes an abuse of the process of the Court. 15. The applicant deposes that the Petition is res judicata and amounts to re-litigation, as the issues raised therein are substantially similar to those that were canvassed before the Liaison Committee and those previously raised in Nairobi ELC Petition No. E027 of 2022. 16. It is deposed that both the appeal before the Liaison Committee and the present Petition were instituted by the 1 st Respondent against the Applicant and that the reliefs sought are substantially similar. 17. The Applicant deposes that the new issues relating to the environmental impact of the development and those arising from the Liaison Committee’s determination are only intended to circumvent the doctrine of issue estoppel and do not prevent the Petition from being termed as res judicata. 18. It is further deposed that the striking out of the appeal for being time-barred did not entitle the Petitioner to disregard Page 7 of 27

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the applicable statutory provisions. Rather, the applicant deposes that such conduct amounted to an abuse of the Court process; otherwise, the Petitioner ought to have appreciated that the right of appeal is conferred by statute and that an appeal lodged outside the prescribed period requires leave of the Court. 19. It is deposed that upon considering the Applicant’s Notice of Motion dated 15.10.2024, the learned Judge delivered a ruling on 6.2. 2025, after which the Applicant subsequently lodged a Notice of Appeal and requested typed proceedings for purposes of pursuing the intended appeal. Copies of the Notice of Appeal and the letter requesting typed proceedings are annexed and marked PM-2. 20. It is further deposed that notwithstanding its decision to appeal against the entirety of the ruling, the Petitioner filed a Notice of Motion dated 19.2. 2025 seeking a review and setting aside of the same ruling and the reinstatement of the Petition for hearing on its merits, on the grounds inter alia, that there was an error apparent on the face of the record Page 8 of 27

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and that the Petitioner had discovered new and important evidence. 21. It is deposed that, in asserting that there was an error apparent on the face of the record, the Petitioner was challenging the Court’s interpretation and application of Section 7 of the Civil Procedure Act, contending that the Court had erred in finding that the Petition was res judicata. The Petitioner advanced six reasons in support of its contention that the Court’s determination on res judicata was erroneous. 22. With regard to the alleged discovery of new and important evidence, it is deposed that the Petitioner claimed to have recently discovered that the notification of approval of the Development Permission had been addressed to a nonjuridical entity. 23. It is deposed that the Applicant, together with the 2 nd and 3rd Respondents, opposed the Application for review, alleging that the Application was incompetent, the Petitioner having already preferred an appeal against the impugned ruling. Page 9 of 27

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24. It is deposed that the Honourable Court subsequently allowed the Petitioner’s Application for review, finding that there was an error apparent on the face of the record and that the Court had misapplied Section 7 of the Civil Procedure Act. A copy of the ruling delivered on 29.7.2025 is annexed and marked PM-3. 25. Being dissatisfied with that decision, the Applicant deposes that it elected to appeal against it and filed a Notice of Appeal dated 1.8. 2025, and requested certified copies of the proceedings and the order by a letter dated 6.8.2025 to facilitate the preparation and filing of the Record of Appeal. Copies of the Notice of Appeal and the letter dated 6.8.2025 are annexed and marked PM-4. 26. It is deposed that despite persistent follow-up, the Court has not yet supplied the Applicant with certified copies of the proceedings and order necessary for the filing of the Record of Appeal. 27. It is further deposed that the Applicant has already prepared a draft Memorandum of Appeal, which is intended to be filed together with the Record of Appeal upon receipt Page 10 of 27

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of the certified typed proceedings. A copy of the draft Memorandum of Appeal is annexed and marked PM-5. 28. It is deposed that the Notice of Motion dated 19.2.2025 was incompetent, having been filed after the Petitioner had already lodged a Notice of Appeal against the ruling delivered on 6.2.2025. Further, since the trial Court had dismissed the Petition on the ground of res judicata, it had become functus officio; it is deposed that, therefore, the court lacked jurisdiction to reopen the matter and entertain the Petitioner’s Application for review. 29. It is further deposed that, in allowing the Application for review, the learned Judge effectively sat on appeal over her own decision by reviewing and reversing her determination on a question of law. 30. It is also contended that the Court reviewed its finding that the Petition was res judicata. Although the developers and parcel of land in the present Petition differ from those in Nairobi ELC Petition No. E027 of 2022. 31. On the contrary, the applicant holds the view that the two alluded matters above and the issues raised correspond with Page 11 of 27

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those involved in Nairobi City County Physical and Land Use Planning Liaison Committee Complaint/Claim/Appeal No. E017 of 2024; hence the Applicant maintains that the Judge was correct in her initial finding that the Petition was res judicata. 32. It is deposed that the learned Judge further reinstated the Petition notwithstanding its alleged contravention of the doctrine of approbation and reprobation and notwithstanding the Petitioner’s admission that the proceedings had been instituted against a non-juristic entity. 33. The applicant has deposed that if Nairobi Petition No. E071 of 2024 proceeds pursuant to the directions of the Honourable Court, the Applicant risks having its intended appeal rendered nugatory, as the Petition may proceed to determination before the trial Court notwithstanding the Applicant’s contention that the Court lacks the requisite jurisdiction. 34. The Application is opposed by the Petitioner through a Replying Affidavit sworn by Samora Sikalieh on 5.12.2025, who is the Chairman of the Page 12 of 27 Karen Langata District

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Association (KLDA), a residential association operating within the Karen-Langata area of Nairobi. 35. It is deposed that the Applicant has failed to discharge the burden of demonstrating substantial loss, which is a central consideration in an application for stay of proceedings under Order 42 Rule 6 of the Civil Procedure Rules. 36. It is contended that substantial loss does not encompass the ordinary expenses and inconveniences associated with litigation, as alleged by the Applicant. Reliance is placed on Kenya Shell Limited v Benjamin Karuga Kibiku & Another (1986) eKLR, 37. The respondent maintains, otherwise, that the only loss potentially likely to be suffered by the Applicant would be the legal costs incurred in defending the Petition. 38. It is further deposed that it is settled law that the mere costs and inconvenience of participating in a trial do not, without more, constitute substantial loss, sufficient to warrant a stay of proceedings. 39. It is contended by the petitioner that should the Applicant ultimately succeed in its appeal, it can be adequately Page 13 of 27

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compensated through an award of costs, which is an ordinary remedy in civil litigation. 40. It is deposed that the 1st Respondent/Applicant has not presented any evidence demonstrating impending financial ruin or irreversible damage, but has instead merely speculated as to the possible outcome of the intended appeal. 41. It is further deposed that the Applicant’s contention that the intended appeal will be rendered nugatory is unsupported by the circumstances of the case and is based on an erroneous assessment of the applicable principles. 42. It is deposed that the relevant consideration in determining whether an appeal will be rendered nugatory is whether the order sought to be stayed is reversible or whether the aggrieved party can reasonably be compensated by an award of damages. Reliance is placed on Stanley Kang’ethe Kinyanjui v Tony Ketter (2013) eKLR. 43. It is contended that the order challenged on appeal merely reinstated the Petition. Therefore, even if the trial Court proceeds with the Petition and the Court of Appeal Page 14 of 27

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subsequently determines that the reinstatement was erroneous, the proceedings before the trial Court may be declared a nullity and set aside. 44. It is further deposed that the subject matter of the dispute is immovable property and that the continuation of the Petition will not materially alter, destroy or dispose of the property, given that the land will remain in existence regardless of whether the proceedings before the trial Court are stayed or allowed to continue. 45. It is contended that staying the proceedings at this stage would merely delay the substantive determination of the constitutional questions raised in the Petition, contrary to the overriding objective of the Civil Procedure Act, which seeks to facilitate the just, expeditious and proportionate resolution of disputes. 46. It is deposed that the Applicant’s contention that the proceedings should be stayed on the basis that the Petitioner is a non-juridical entity is contrary to the doctrine of approbation and reprobation. Page 15 of 27

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47. It is further deposed that the Applicant cannot approbate and reprobate regarding the Petitioner’s legal status by, on the one hand, challenging its legal existence and, on the other hand, relying on that status to avoid responding to the constitutional issues raised in the Petition. 48. It is deposed that the ruling sought to be appealed against was delivered on 29.7.2025, whereas the present Application was filed on 29.10.2025, approximately three months later, without any plausible explanation for the alleged 90-day delay. The Petitioner contends that this demonstrates that the Application was an afterthought intended to delay the expeditious determination of the Petition. 49. In a Supplementary Affidavit sworn by Bro. Prof. Paulos W. Memer on 28.1.2026, the Applicant reiterates the contents of the Supporting Affidavit but clarifies that the allegation of an unreasonable three-month delay is misplaced. It is deposed that the delay was occasioned by the Applicant’s inability to obtain a certified copy of the impugned ruling due to a clerical error contained therein, which was only rectified on 13.10.2025. Page 16 of 27

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50. It is further deposed that unless an order for stay of proceedings is granted, the intended appeal risks being rendered nugatory. 51. The Applicant reiterates that the intended appeal will be rendered nugatory unless the Court grants an order staying the proceedings. 52. After directions, the applicant relies on written submissions dated 17th July, 2026 to urge the Court to find the application with merit . Reliance is placed on Makena V Nalwa (Civil appeal E127 of 2024)KEHC 13086 (KLR), Kenya National Examination Council V Republic & 20 others 2021 KECA 779 (KLR); Re Estate of John Kiptum Bartilol (Deceased) 2021 KEHC 7475 (KLR). 53. On the other hand, the petitioner filed submissions dated 5 th December 2025. Reliance is placed on case law of Kenya Shell Limited V Benjamin Karuga Kibiku & Another [1986] eKLR and Stanley Kangethe Kinyanjui V Tonny Ketter & 5 Others [2013] eKLR 54. The jurisdiction of the Court to grant a stay pending appeal is anchored in Order 42 Rule 6 of the Civil Procedure Rules. A Page 17 of 27

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stay of proceedings constitutes a more drastic form of judicial intervention, as it effectively halts the hearing and determination of a matter before the trial Court. The Court must, therefore, be satisfied that there exist compelling circumstances warranting the grant of such an order. 55. The applicable principles were outlined by a five-judge bench of the High Court in William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR: the court held thus; “a. First, there must be an appeal pending before a 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 Page 18 of 27

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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 in 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 substantial raises questions to otherwise be determined or is 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 Page 19 of 27

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are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case 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.” 56. Litigation ordinarily proceeds through a structured and predictable process from commencement, hearing, determination and to appeal. 57. An order of stay of proceedings therefore disrupts this established course of litigation. While, viewed against Article 159(2)(b) of the Constitution, which requires that justice shall not be delayed, a stay of proceedings may appear undesirable, since the court’s ultimate mandate is to ensure a fair and just determination of disputes. 58. Accordingly, although the Court is generally reluctant to halt proceedings merely because an appeal is pending, a Page 20 of 27

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stay may, in appropriate circumstances, be justified where proceeding with the matter would risk rendering the intended or pending appeal nugatory. 59. An applicant must therefore demonstrate that his appeal raises substantial questions for determination or is otherwise arguable. On what constitutes an arguable appeal, the Court of Appeal in University of Nairobi v 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 raised. is See Damji Pragji Mandavia v Sara Lee Household. & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004. 8. An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully Page 21 of 27

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before the Court; one which is not frivolous. See Joseph Gitahi Gachau & v. Another Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008” 60. The Applicant in this application has demonstrated that it has taken steps towards challenging the ruling of 29.7. 2025. In particular, a Notice of Appeal dated 1.8.2025 was filed, and the Applicant requested proceedings and the order for purposes of pursuing the intended appeal. 61. An intended appeal alone does not automatically justify halting legal proceedings. To grant a stay, the Court must evaluate the specific harm that could occur if the case goes forward, ensuring that this prejudice is serious enough that it cannot be fixed even if the appeal eventually succeeds. 62. The Applicant’s principal contention is that the intended appeal would be rendered nugatory if the Petition proceeds to hearing and determination. The ruling of 29.7.2025 did not finally determine the substantive constitutional and planning issues raised in the Petition. Rather, it reviewed the Page 22 of 27

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earlier ruling and reinstated the Petition for hearing on its merits. The immediate effect of the impugned ruling is that the Petition is to proceed to hearing. 63. The act of allowing the petition to proceed for hearing does not, of itself, transfer ownership of the suit property, authorise development, demolish existing structures, or otherwise alter the physical status of LR No. 7943. 64. The Applicant has not placed before the Court evidence demonstrating that the continuation of the proceedings will result in the destruction, alienation or irreversible alteration of the suit property. The suit property is immovable and, as correctly submitted by the Petitioner, its existence is not dependent upon whether these proceedings are stayed. 65. The Applicant has not demonstrated what irreversible prejudice it would suffer merely by participating in the hearing of the Petition. The fact that the Applicant may be required to incur legal expenses or expend time and resources in defending the Petition does not, without more, amount to substantial loss. Page 23 of 27

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66. Courts have consistently held that the mere commencement or continuation of judicial proceedings does not, by itself, establish the kind of substantial loss contemplated under the stay jurisdiction. In Elisha Kare Busieniei and others versus Rebecca Soy & Another, Court of Appeal at Eldoret, (Application) No. E017 of 2026,(Ruling) delivered on 2nd October,2026 the court cited with approval Stanley Kangethe Kinyanjui v Tony Ketter and others, 2013 KECA 378, KLR, that it is incumbent upon an applicant to demonstrate that unless stay orders issue, the intended appeal, even if successful, would be rendered nugatory or irreversible to an extent that damages may not be a sufficient remedy. The court held that the hearing of the matter would not render the appeal nugatory, since the outcome is subject to review or appeal. The court said that stay of proceedings is an equitable remedy which is sparingly granted and only in deserving cases 67. The Applicant argues that if the Petition is heard and determined before the intended appeal, the appeal will be Page 24 of 27

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rendered nugatory. I am unable to agree with that proposition in the circumstances of this case. 68. In considering whether an appeal will be rendered nugatory, the Court of Appeal in Kinyanjui v 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 irreversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 69. The court must, in exercising its discretion, balance the Applicant's right to pursue an appeal against the Respondent's corresponding right to have its Petition heard and determined without unnecessary delay. 70. The purpose of a stay is to preserve the subject matter and ensure that an appeal, if successful, is not rendered nugatory; it is not intended to automatically halt proceedings merely because one party has preferred an appeal. 71. The Applicant is further required to demonstrate the existence of exceptional circumstances that would justify the Page 25 of 27

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grant of a stay of proceedings. In Psinen v Seset and others 2026 KECA 1035 KLR, the court, looking at the history of the matter, said that it was more hygienic for the suit to follow its normal course and thereafter any party aggrieved by that decision will be at liberty to appeal. 72. The overriding objective of the civil process includes the just, expeditious and proportionate determination of disputes and the efficient use of judicial resources. A stay should not be granted where its effect would merely delay determination of the dispute without demonstrating a corresponding necessity for preservation of the Applicant's appellate rights. 73. It is the finding of this court that the present application does not meet the threshold or satisfy the elements for the grant of stay of proceedings. Consequently, I make the following orders: a. That the 1st Respondent/Applicant’s Notice of Motion dated 29.10.2025 is hereby dismissed. Page 26 of 27

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b. That the proceedings in Nairobi Petition No. E071 OF 2024 shall proceed in accordance with the directions of the Court. c. The cost of the application shall abide the outcome of the petition. 74. Orders accordingly Dated, Signed And Delivered At Nairobi This 7th Day Of October 2026. …………………………. HON. JUSTICE C.K. NZILI JUDGE Delivered In the Presence of: Mr. Mutugi for petitioners Miss Nyawira for 4th ,5th and 6th Respondent Court Assistant: Julius Legal Researcher : Bevalyn Nyakwana Page 27 of 27

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