High Court 11253 of 2026

a. Judgment in the matter was delivered without notice to the parties in spite of the court having indicated that it will deliver the judgment on notice and the same not forthcoming for a long time. She was not informed of the same by her former advocates on record, Maragia, Ogaro & Company after they relocated to Nakuru or even by the respondents herein. The appellant learnt of the judgment when he sent someone to physically look at the file at Kwale. b. The appellant had lost contact for some time with the law firm acting for the him after it had relocated to Nakuru. c. The appellant had appointed new advocates and there was need for leave to allow them to act for him. d. It was after perusal that the appellant learnt of the judgment, decree, warrants of attachment had been issued. e. The appellant had been served with a notice to show cause why warrants of attachment and committal to civil jail in execution of the judgment and the same was coming up for hearing on 23rd April 2025. f. The appellant was never served with a notice of entry of judgment and was not aware of the same. g. The statutory period of appeal had lapsed and so he was seeking extension. h. The appellant had discussed the judgment of the trial court with his advocate and agreed that he has valid arguable grounds of appeal with high chances of success as demonstrated in the memorandum of appeal as there are many errors of fact and law in the judgment. i. The land, the subject of the suit is still available for occupation by the respondent who however had declined to take possession of the same. The respondent will therefore not suffer any prejudice if stay of execution is granted pending the intended appeal, Otherwise the same will be rendered nugatory and an academic exercise. j. In view of the decree and warrants of attachment having been issued, it is fair that stay of execution be granted pending the hearing of the intended appeal. 4. The application is opposed by the respondent through her replying affidavit sworn on 20th May 2025. She deposes that the application is mischievous, misleading, a mere redherring, utterly devoid of merit and an abuse of court process and it is a malicious attempt only meant to delay her from enjoying the fruits of the judgment. 5. She deposes that her advocates notified the applicant’s then advocates on record of delivery of the judgment through a letter dated 5th August 2025 but the said advocates never responded. The respondent commenced the process of execution and auctioneers visited the applicant’s residence and proclaimed his property. However, before expiry of the 7 days' notice on the proclamation the applicant unlawfully removed the proclaimed properties and relocated entirely to an unknown place. This action by the applicant necessitated filing of the Notice To Show Cause against him. 6. She deposes further that despite the applicant’s advocates being aware of the judgment

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in August 2024, the present application and memorandum of appeal were only filed on 24th April 2025, eight months later. 7. The respondent deposes further that the prolonged litigation in this matter has been prejudicial to her and she should be allowed to reap the fruits of the judgment. 8. The respondent deposes further the applicant has not demonstrated sufficient cause to warrant an order of stay of execution as the intended appeal has no chance of success and there is no proof that substantial loss may result to him unless the order is made. 9. Further there is no proof that the respondent would not be able to refund the decretal sum if the intended appeal succeeds but conversely the applicant has demonstrated unwillingness to settle the decree and a propensity to evade execution even through unlawful means. 10. Further that the applicant has made no mention of any offer for such security for the due performance of the decree as may ultimately be binding on him, but if the court is inclined to grant a stay then it should direct that the Applicant furnish such security for due performance of the entire decree including costs and auctioneer fees to be deposited in a joint interest earning account in the names of the advocates. 11. The application was heard by way of written submissions filed by counsels for both parties. 12. I have considered the Notice of Motion application dated 17th April 2025, the grounds in support thereof and the supporting affidavit as well as replying affidavit sworn on 20th May 2025. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application. 13. The grounds in the memorandum of appeal do not provide a glimpse of what the cause of action in the magistrate’s court was. However, the judgment sought to be challenged indicates in paragraph 2 that the cause of action arose out of an agreement between the respondent (plaintiff in the suit) and the applicant/intended appellant (defendant in the suit) where the defendant agreed to sell to the plaintiff the interest held by the defendant in the property known as Plot No. 41/Diani Complex/Kwale Curio market at a consideration of KShs 340,000/=. It was alleged by the plaintiff that the defendant breached the terms of the agreement and declined to transfer his interest in the suit property to the plaintiff. The plaintiff therefore sued for a refund of the purchase price. The defendant on his part denied breaching the terms of the agreement for sale and pleaded that he made all necessary efforts to transfer the suit property to the plaintiff and invited the plaintiff to execute her part of the transfer documents but the plaintiff refused to do so. 14. I have perused the pleadings in the lower court and indeed they are as captured in the judgment of the court. 15. It is apparent that the cause of action in the lower court was on sale and transfer of an interest in land. It follows that it is a matter which revolves around title to land. The question then is whether or not this court has jurisdiction over that issue.

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16. Under Articles 162(2) and 165(5) of the Constitution, I have no jurisdiction over that question. 17. The primary source of the jurisdiction of the courts is the Constitution. With respect to matters touching on title to and occupation of land, the relevant provisions are in Article 162(2) and 165(5). 18. Article 162(2) of the constitution provides for the establishment of courts to be of equal status with the High Court, to exercise jurisdiction over, the environment and the use and occupation of and title to land. The Environment and Land Court Act, No. 19 of 2011, to establishes the Environment and Land Court. The jurisdiction of the court is set out in section 13 of the Act. The court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution, relating to environment and land. More specifically as relates to this case, the ELC as jurisdiction under section 13(2)(d) to deal with matters (d) relating to public, private, and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and under paragraph (e) any other dispute relating to environment and land.” 19. Article 165(5)(b) of the Constitution on the jurisdiction of the High Court provides that the jurisdiction does not cover the matters falling within the jurisdiction of the courts under Article 162(2). 20. It is apparent from the pleadings in the lower court that the contest between the parties was whether or not there was breach of contract by the applicant in the transaction between him and the respondent for the sale and transfer of an interest in a portion of land supposedly owned by the applicant. Sale of property is about conveyance of title from the seller to the buyer. The dispute, therefore, is not only at the heart of title and ownership of the portion of land but also falls under section 13(2)(d) of the ELC Act. Ownership or proprietorship of a property in land revolves about title, and that clearly places the matter squarely under Article 162(2) of the Constitution. 21. It was held by the Court of Appeal, in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR, that: “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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 22. While considering the question of the jurisdiction of the High Court on an issue of sale of land, the High Court in the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) stated thus: “The property in question is registered land. Registration of property and transfers are governed by land legislation, to be specific the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The two pieces of land legislation have elaborate provisions of sale

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of registered land, and transfer and registration thereof. A determination of the question as to whether there was a valid sale of the registered land in accordance with the relevant land legislation, is an issue that is well outside the jurisdiction of the High Court. “My understanding of these provisions, in the context of the matter before me, is that any disputes or questions or issues that require court intervention, which revolve around sale, registration and transfer of land, fall within the jurisdiction of the Environment and Land Court. The Land Registration Act and the Land Act, therefore, confer jurisdiction in the Environment and Land Court with regard to all the processes that are subject to the two statutes, and, therefore, any reference in the two statutes to court is meant to refer to the Environment and Land Court and any subordinate court that has been conferred with jurisdiction over the processes the subject of the two statutes.” 23. The High Court then held that it had no jurisdiction whatsoever to address the matter that the applicant had placed before it. I am persuaded to follow that decision and find that this court has no jurisdiction to consider the application herein for reasons that even if it were to do so, it would not determine the intended ensuing appeal with regard to whether there was breach of contract in the alleged sale transaction between the parties herein. 24. Consequently, this court finds that the applicant’s motion and intended appeal can better be addressed before the correct forum but not this court. 25. The application is struck out with no orders as to costs since this issue was raised suo moto by the court. 26. Orders accordingly. 27. Delivered, dated and signed on the Virtual Platform, Teams this 14th day of January 2026. ANDAYI W. F. JUDGE In the presence of: Mariara for Applicant. N/A. for the Respondent. Ummu Court Assistant. ANDAYI W. F. JUDGE

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