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1. The application before me is dated 25/6/2024 seeking orders:
1) Spent
2) Spent
3) That pending the hearing and determination of the application herein, an order of stay do issue against the ruling and consequential orders and decrees and consequential orders and decrees in a ruling delivered by Hon. Benson Ireri at Makindu Law Courts on 3rd June, 2024 in Succession Cause 31 of 2016(estate of the late Mutinda Makau) in an application dated 23rd October, 2023 being Charles Mutisya Mutinda Vs Ndunda Kimeu.
4) That pending the hearing and determination of the intended Appeal, an order of stay do issue against the ruling and consequential orders and decrees in a ruling delivered by Hon. Benson Ireri at Makindu Law Courts on 3rd June, 2024 in Succession Cause 31 of 2016 (estate of the late Mutinda Makau) in an application dated 23rd October, 2023 being Charles Mutinda Mutinda Vs Ndunda Kimeu.
5) Costs of this application be borne by the Respondent.
2. It is brought under section 1 A & 3A of Civil Procedure Act, order 42 rule 6 of Civil Procedure Rules Article 165 (6) of Constitution.
3. It is supported by the affidavit of Abednego Ndunda Kimeu sworn on 1/7/2024. He depones inter alia;.
1) That the court in Senior Principal Magistrates Court at Makindu on 3rd June, 2024 delivered a ruling whereof it directed the interested parties to put beacons on the respondents’ land which will essentially alter the boundaries and encroach on our land. (Annexed hereto and marked as annexure ANK 1 is a copy of the ruling.)
2) That the court in the said ruling at Pg 3(annexure ANK1) rightfully finds that the boundary dispute was settled in the year 1977 whereof parties recorded a consent. 1 Quote” … from the respondents it appears that there was a land boundary dispute between the applicants father Kasuni Mutinda and the father to the respondents over two parcels of land Nzaui/Masumba 461 and Nzaui/Masumba 409 which was determined in Machakos Civil Apeal NO. P7 0F 11977, where the parties recorded a consent that the district surveyor and the land registrar were to move on the ground to correct the boundary. The said exercise was conducted and the district land registrar who in his report found that the owner of land number Nzaui/Masumba/409 had encroached right inside plot No. 461. It was discovered that Kasuni Mutinda the brother of the applicant had occupied 3.5 acres of plot 461 and the registrar planted a common boundary using sisals. I therefore find that the boundary dispute between the two parcels was determined and no further appeal was filed.
3) However the court at the tail end departs from its on finding and makes the following decision “… I therefore allow the application in the following terms the 1st and 2nd interested parties are directed to move to the applicants parcel of land and place beacons on plot number Nzaui/Masumba409 to effect the certificate of confirmed grant who should do so in cognizance of the survey exercise conducted earlier.”
4) That according to the survey conducted earlier which the learned magistrate makes reference to: interference with the boundaries as sets out in 1977 and as such encroaches on our property thereby hiving off a big junk of our land.
5) That am advised by my advocates which information I verily believe to be true that the issue of boundary determination between ourselves and the respondent is resjudicata. As was correctly found and pointed out by the learned magistrate.
6) That we are not party to any kind of subdivision as far as land parcel No. Nzaui/Masumba/409 is concerned and we don’t understand why the respondent dragged us into their family issues.
4. The application is opposed by the respondent through the replying affidavit sworn on 30/6/2025. He depones that the application is only meant to deny him the fruit of his judgment.
5. That this court lacks the jurisdiction to hear and determine him application as it is about a boundary dispute.
6. Parties filed written submissions.
7. For the applicant the issue framed is whether the applicant met the conditions for stay of execution as per order 42 R 6 of the Civil Procedure Rules.
8. For the appellant it is submitted that the applicant has complied with the requirements of order 42 rule 6 on demonstrating substantial loss, filing the matter without delay. He relies on Mukuma Vs Abednego (1998) 645, Tropical Commodities Suppliers Limited And Others Vs International Credit Bank Limited (in liquidation) (2004) 2 EA 331 on what amounts to substantial loss and the proposition that substantial loss is not about a mathematical formula “ but a quantitative concept… loss great or small that is of real worth value …”
9. Citing Butt vs Rent Restriction Tribunal [1979] eKLR he submits that this court has discretion in determining whether or not to grant stay.
10. On the whether or not the issue is that of a boundary dispute he submits that the ruling subject of this appeal was made in Succession Cause no. 31/2026 Estate of late Mutinda Makau. That the issue about the two parcels of land Nzaui Masumba 409 and Nzaui Masumba 461 arose out of the execution of the certificate of the confirmation of grant in the about succession cause and that the subordinate court found that any boundary dispute between the two was settled between the parties in Machakos Civil Appeal No. 7/1977, that the issue is res judicata and cannot be revisited. He cited Nicholas Njeru vs AG and 8others [2013] eKLR.
11. He submitted further that this court has supervisory powers over the subordinate court as provided by Article 165 (6), (7) of the Constitution and cited Rana Auto Selections Limited and 2 others vs Kenya Revenue Authority and another [2021] KEHC 323KLR on the purpose and application of the supervisory jurisdiction of the high court; “ to keep subordinate courts within prescribed spheres and to prevent usurpation…”
12. That this being a first appeal the applicant is entitled to re-examination of the evidence on the evidence on record as was stated in Paramount Bank Limited vs First National Bank Limited and 2 others [2003] KECA 1424 (KLR) for the proposition that the first appeal has to be decided on facts and the law.
13. That the application if allowed which preserve the status quo pending the hearing and determination of the appeal.
14. For the respondent the submissions are in concurrence as far as the exercise of discretion is concerned and the respondent relies on Butt vs Rent Restriction Tribunal.
15. Referring to the applicant’s memorandum of appeal - the respondent submits that the applicant states that the learned magistrate erred in law when he made an order that the interested parties move into the respondents parcel no. Nzaui/Masumba/409 to effect certificate of confirmation of grant which would lead to encroachment on his parcel of land.
It is submitted that for the applicant – the issue an encroachment by the interested party onto his own land and if allowed he will suffer loss – enjoyment of his land.
16. It is submitted that this court lacks the requisite jurisdiction to hear and determine this matter as it is a matter for the ELC court for as per Article 162 (2) (b) of the Constitution and the Environment and Land Court Act.
17. That from the applicant’s pleadings -this is a land dispute and this court ought to down its tools. This court is referred to In The Matter of IEBC [2011] eKLR, and Owners of Motor Vessel `Lilian S` vs Caltex Oli (K) Limited [1989] KLR 1 to the effect that jurisdiction is everything, without it a court has no power and must down its tools.
18. From the foregoing submissions it is evident that the first and key issue for determination is whether this court has the jurisdiction to entertain this issue.
19. From the ruling of the subordinate court it emerges that there was certificate of confirmation of grant; the beneficiaries upon receiving the certificate of confirmation of grant embarked on surveying the parcel no. Nzaui/Masumba /409 - and in the process a dispute arose over its boundary with the land adjacent to wit Nzaui/Masumba/461.
20. According to the respondent there was a boundary dispute that was settled through a consent in Machakos High Court Civil Appeal no. 7/1977 which settled the said boundaries.
21. What then is the issue for determination?
22. From the going it is very clear that the issue before me does not relate to the estate of the deceased in Succession Cause 31/2016. The succession court completed its work as per section 71 of the Law of Succession Act when it identified the estate, the beneficiaries and their respective shares and distributed the same through the certificate of confirmation of grant.
23. The parcel No. 461 does not belong to the deceased - but to someone else and what stands out is that there is an issue about the boundaries of 409 and 461.
24. That issue can never be the subject of the probate and administration court. It can only be a matter for the Environmnet and land Court to determine where no. 409 starts and ends and whether it encroaches no 461 or vice versa. Whether the boundary dispute was settled and is rejudicata - that is not an issue for this court. It is an issue for the ELC court to determine because the origin of that matter was land dispute.
25. The applicant is not seeking the revocation of the grant etc - but on appeal on a matter that is purely a land dispute over a boundary between the estate of the deceased and another parcel of land and that is a matter that ought to have been started in the ELC court.
26. I am in agreement with the submission that this court lacks the jurisdiction to deal with the issue and I can only proceed to down my tools.
27. In this event - the application is struck out - with costs.
Dated signed and delivered via CTS this 3rd October 2025
Mumbua T Matheka
Judge
CA Chrispol
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1. The application before me is dated 25/6/2024 seeking orders:
1) Spent
2) Spent
3) That pending the hearing and determination of the application herein, an order of stay do issue against the ruling and consequential orders and decrees and consequential orders and decrees in a ruling delivered by Hon. Benson Ireri at Makindu Law Courts on 3rd June, 2024 in Succession Cause 31 of 2016(estate of the late Mutinda Makau) in an application dated 23rd October, 2023 being Charles Mutisya Mutinda Vs Ndunda Kimeu.
4) That pending the hearing and determination of the intended Appeal, an order of stay do issue against the ruling and consequential orders and decrees in a ruling delivered by Hon. Benson Ireri at Makindu Law Courts on 3rd June, 2024 in Succession Cause 31 of 2016 (estate of the late Mutinda Makau) in an application dated 23rd October, 2023 being Charles Mutinda Mutinda Vs Ndunda Kimeu.
5) Costs of this application be borne by the Respondent.
2. It is brought under section 1 A & 3A of Civil Procedure Act, order 42 rule 6 of Civil Procedure Rules Article 165 (6) of Constitution.
3. It is supported by the affidavit of Abednego Ndunda Kimeu sworn on 1/7/2024. He depones inter alia;.
1) That the court in Senior Principal Magistrates Court at Makindu on 3rd June, 2024 delivered a ruling whereof it directed the interested parties to put beacons on the respondents’ land which will essentially alter the boundaries and encroach on our land. (Annexed hereto and marked as annexure ANK 1 is a copy of the ruling.)
2) That the court in the said ruling at Pg 3(annexure ANK1) rightfully finds that the boundary dispute was settled in the year 1977 whereof parties recorded a consent. 1 Quote” … from the respondents it appears that there was a land boundary dispute between the applicants father Kasuni Mutinda and the father to the respondents over two parcels of land Nzaui/Masumba 461 and Nzaui/Masumba 409 which was determined in Machakos Civil Apeal NO. P7 0F 11977, where the parties recorded a consent that the district surveyor and the land registrar were to move on the ground to correct the boundary. The said exercise was conducted and the district land registrar who in his report found that the owner of land number Nzaui/Masumba/409 had encroached right inside plot No. 461. It was discovered that Kasuni Mutinda the brother of the applicant had occupied 3.5 acres of plot 461 and the registrar planted a common boundary using sisals. I therefore find that the boundary dispute between the two parcels was determined and no further appeal was filed.
3) However the court at the tail end departs from its on finding and makes the following decision “… I therefore allow the application in the following terms the 1st and 2nd interested parties are directed to move to the applicants parcel of land and place beacons on plot number Nzaui/Masumba409 to effect the certificate of confirmed grant who should do so in cognizance of the survey exercise conducted earlier.”
4) That according to the survey conducted earlier which the learned magistrate makes reference to: interference with the boundaries as sets out in 1977 and as such encroaches on our property thereby hiving off a big junk of our land.
5) That am advised by my advocates which information I verily believe to be true that the issue of boundary determination between ourselves and the respondent is resjudicata. As was correctly found and pointed out by the learned magistrate.
6) That we are not party to any kind of subdivision as far as land parcel No. Nzaui/Masumba/409 is concerned and we don’t understand why the respondent dragged us into their family issues.
4. The application is opposed by the respondent through the replying affidavit sworn on 30/6/2025. He depones that the application is only meant to deny him the fruit of his judgment.
5. That this court lacks the jurisdiction to hear and determine him application as it is about a boundary dispute.
6. Parties filed written submissions.
7. For the applicant the issue framed is whether the applicant met the conditions for stay of execution as per order 42 R 6 of the Civil Procedure Rules.
8. For the appellant it is submitted that the applicant has complied with the requirements of order 42 rule 6 on demonstrating substantial loss, filing the matter without delay. He relies on Mukuma Vs Abednego (1998) 645, Tropical Commodities Suppliers Limited And Others Vs International Credit Bank Limited (in liquidation) (2004) 2 EA 331 on what amounts to substantial loss and the proposition that substantial loss is not about a mathematical formula “ but a quantitative concept… loss great or small that is of real worth value …”
9. Citing Butt vs Rent Restriction Tribunal [1979] eKLR he submits that this court has discretion in determining whether or not to grant stay.
10. On the whether or not the issue is that of a boundary dispute he submits that the ruling subject of this appeal was made in Succession Cause no. 31/2026 Estate of late Mutinda Makau. That the issue about the two parcels of land Nzaui Masumba 409 and Nzaui Masumba 461 arose out of the execution of the certificate of the confirmation of grant in the about succession cause and that the subordinate court found that any boundary dispute between the two was settled between the parties in Machakos Civil Appeal No. 7/1977, that the issue is res judicata and cannot be revisited. He cited Nicholas Njeru vs AG and 8others [2013] eKLR.
11. He submitted further that this court has supervisory powers over the subordinate court as provided by Article 165 (6), (7) of the Constitution and cited Rana Auto Selections Limited and 2 others vs Kenya Revenue Authority and another [2021] KEHC 323KLR on the purpose and application of the supervisory jurisdiction of the high court; “ to keep subordinate courts within prescribed spheres and to prevent usurpation…”
12. That this being a first appeal the applicant is entitled to re-examination of the evidence on the evidence on record as was stated in Paramount Bank Limited vs First National Bank Limited and 2 others [2003] KECA 1424 (KLR) for the proposition that the first appeal has to be decided on facts and the law.
13. That the application if allowed which preserve the status quo pending the hearing and determination of the appeal.
14. For the respondent the submissions are in concurrence as far as the exercise of discretion is concerned and the respondent relies on Butt vs Rent Restriction Tribunal.
15. Referring to the applicant’s memorandum of appeal - the respondent submits that the applicant states that the learned magistrate erred in law when he made an order that the interested parties move into the respondents parcel no. Nzaui/Masumba/409 to effect certificate of confirmation of grant which would lead to encroachment on his parcel of land.
It is submitted that for the applicant – the issue an encroachment by the interested party onto his own land and if allowed he will suffer loss – enjoyment of his land.
16. It is submitted that this court lacks the requisite jurisdiction to hear and determine this matter as it is a matter for the ELC court for as per Article 162 (2) (b) of the Constitution and the Environment and Land Court Act.
17. That from the applicant’s pleadings -this is a land dispute and this court ought to down its tools. This court is referred to In The Matter of IEBC [2011] eKLR, and Owners of Motor Vessel `Lilian S` vs Caltex Oli (K) Limited [1989] KLR 1 to the effect that jurisdiction is everything, without it a court has no power and must down its tools.
18. From the foregoing submissions it is evident that the first and key issue for determination is whether this court has the jurisdiction to entertain this issue.
19. From the ruling of the subordinate court it emerges that there was certificate of confirmation of grant; the beneficiaries upon receiving the certificate of confirmation of grant embarked on surveying the parcel no. Nzaui/Masumba /409 - and in the process a dispute arose over its boundary with the land adjacent to wit Nzaui/Masumba/461.
20. According to the respondent there was a boundary dispute that was settled through a consent in Machakos High Court Civil Appeal no. 7/1977 which settled the said boundaries.
21. What then is the issue for determination?
22. From the going it is very clear that the issue before me does not relate to the estate of the deceased in Succession Cause 31/2016. The succession court completed its work as per section 71 of the Law of Succession Act when it identified the estate, the beneficiaries and their respective shares and distributed the same through the certificate of confirmation of grant.
23. The parcel No. 461 does not belong to the deceased - but to someone else and what stands out is that there is an issue about the boundaries of 409 and 461.
24. That issue can never be the subject of the probate and administration court. It can only be a matter for the Environmnet and land Court to determine where no. 409 starts and ends and whether it encroaches no 461 or vice versa. Whether the boundary dispute was settled and is rejudicata - that is not an issue for this court. It is an issue for the ELC court to determine because the origin of that matter was land dispute.
25. The applicant is not seeking the revocation of the grant etc - but on appeal on a matter that is purely a land dispute over a boundary between the estate of the deceased and another parcel of land and that is a matter that ought to have been started in the ELC court.
26. I am in agreement with the submission that this court lacks the jurisdiction to deal with the issue and I can only proceed to down my tools.
27. In this event - the application is struck out - with costs.
Dated signed and delivered via CTS this 3rd October 2025
Mumbua T Matheka
Judge
CA Chrispol
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