(Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Keroka (E K Nyutu, Chief Magistrate) delivered on 17 th June 2026 in Keroka MCELC No. 25 of 2020)
1. Litigation leading to this appeal was commenced in the Subordinate Court by the Appellant through Plaint dated 24 th August 2020. Upon hearing the matter, the Subordinate Court (E K Nyutu, Chief Magistrate) delivered judgment on 17 th June 2026 as follows:
The Plaintiff's suit is dismissed.
Judgment is entered for the Defendant on the counterclaim in the following terms:
a. A declaration is hereby issued that the Defendant, Mogoa Andrew Moirore, is entitled to the portion measuring 0.5 acres out of L.R. No. Mwongori Settlement Scheme/458 purchased under the sale agreement dated 31 st December 2017.
b. The Plaintiff, Charles Nyabero Nyanchama, in his capacity as legal administrator of the estate of Nyanchama Kimaiti Peter, shall within sixty days execute all documents necessary to facilitate subdivision, transfer and registration of the said 0.5-acre portion in favour of the Defendant, subject to compliance with all applicable statutory requirements.
c. In default of execution by the Plaintiff within the stated period, the Executive Officer of this Court is authorised to execute the necessary documents on behalf of the Plaintiff.
d. The Land Registrar and County Surveyor, Nyamira County, shall give effect to the subdivision and transfer in accordance with the applicable law, the relevant survey reports and the court orders already on record.
e. The Defendant's claims for general damages and mesne profits are declined for want of strict proof.
f. The Plaintiff shall bear the costs of the suit and the counterclaim .
2. Dissatisfied with the outcome, the Appellant filed this appeal on 30 th June 2026, through Memorandum of Appeal dated 29 th June 2026. Subsequently, the Appellant filed Notice of Motion dated 6 th July 2026, which is the subject of this ruling. The following orders are sought in the application:
1. THAT this matter be certified as extremely urgent and be heard ex-parte in the first instance.
2. THAT pending the hearing of this Application inter-partes on the day of ____ 2026 this Honourable Court do restrain the Land Registrar Nyamira from executing the Decree dated 25 th June 2026 on the 9 th July 2026 or any other date thereafter until this Application for stay is heard and decided.
3. THAT this Court be pleased to grant a Stay of Execution of the Decree dated 25 th June 2026 until this Appeal filed by the Applicant is heard and decided.
4. THAT costs of this Application be provided for .
3. The application is based on the grounds listed on its face and is supported by an affidavit sworn by the Appellant. He deposed that the judgment appealed against was delivered on 25 th June 2026 and that on the very day that this appeal was filed, Counsel for the Respondent wrote to the Land Registrar and County Surveyor Nyamira, requesting them to execute the decree. That on the same day, the Land Registrar wrote to him informing him that they would execute the decree on 9 th July 2026 and that he then alerted his advocate on record who wrote to the Land Registrar and Surveyor on 3 rd July 2026. He further deposed that he would suffer irreparable loss if the decree were to be executed since the appeal would be rendered nugatory.
4. The Respondent reacted to the application by filing Notice of Preliminary Objection dated 6 th July 2026. The objection is on the following grounds:
1. The Appellant, Charles Nyabero Nyanchama, lacks locus standi to lodge or file the appeal or the instant motion dated 06.07.2026 in regard to L.R. Mwongori Settlement Scheme/458, the subject of the alleged appeal herein, which property is registered in the name of Nyanchama Kimaiti Peter (Deceased).
2. The Honourable Court lacks jurisdiction to hear and determine the motion dated 06.07.2026 and the appeal for want of valid and proper parties before it .
5. This ruling is also in respect of the preliminary objection.
6. The Respondent also filed Grounds of Opposition dated 6 th July 2026, raising the following grounds:
1. THAT there is no urgency disclosed in neither the Certificate of Urgency by George Joseph Mogaka Masese dated 06.07.2026 nor the Supporting Affidavit of Charles Nyabero Nyanchama sworn on 06.07.2026. It is abundantly just and fair that both parties be heard before ANY order is issued.
2. THAT absolutely there is no basis at all for exparte hearing of the motion dated 06.07.2026. There is no legal justification for issuance of interim orders.
3. THAT the Applicant has not demonstrated any substantial loss he will suffer if interim or temporary orders are not issued.
4. THAT the application is incompetent, bad in law, an abuse of the court process and an embarrassment to the court and the Respondent.
5. THAT the decree in the lower court is issued by the Honourable Court and the Applicant has not raised any issue with it.
6. THAT the Applicant does not meet the threshold for the grant of orders sought under the cited provisions of law.
7. THAT land cannot be carted away hence there is no chance of prejudice to the Applicant.
8. THAT the Applicant is misleading the court intentionally in order to obtain exparte orders as there is no judgment that was delivered on 25.06.2026.
9. THAT the Respondent is a Judgment Creditor whose rights have accrued and ought to be protected by the Honourable Court.
10. THAT the instant application for interim orders is meant to take advantage of the Respondent and steal a march over him for the reason it was NEVER instituted in the first instance the court that delivered the judgment, as is ordinarily the case .
7. The Respondent further filed a replying affidavit on 5 th August 2026. The uploaded copy is however both illegible and incomplete. I have been unable to make anything of it.
8. The application and the preliminary objection were canvassed together through written submissions. Counsel on record for the Appellant/Applicant filed submissions dated 30 th July 2026.
9. It was submitted on behalf of the Appellant that the preliminary objection was without basis since the Appellant obtained Limited Grant of Letters of Administration Ad Litem and filed the suit on the basis of the said grant. That, consequently, the Appellant was properly before the Court.
10. It was further submitted that the Appellant would suffer irreparable loss if the decree was executed before the Appeal is heard and that in such an event, the appeal would be rendered nugatory. Consequently, the Appellant urged the Court to grant the orders sought in the application.
11. On the other hand, Counsel on record for the Respondent filed submissions dated 3 rd August 2026. It was submitted that the Appellant filed the suit in the Subordinate Court in his capacity as a Legal Administrator of the Estate of Nyanchama Kimaiti Peter (deceased), yet when he filed this appeal, he did not indicate that the appeal was brought in his legal capacity as the Administrator of the estate of the deceased. That, consequently, the Appellant lacks locus standi and the Court does not have jurisdiction to hear an improper party before it. The cases of Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR) , Buchere v Indimuli [2025] KEELC 4085 (KLR) and Hawo Shanko v Mohamed Uta Shanko [2018] eKLR , among others, were cited in support of those submissions.
12. Relying on the cases of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) , Francis K. Chabari & another v Mwarania Gaichura Kairubi [2022] KEELC 1137 (KLR) and Wambua v Kioko [2022] KEHC 197 (KLR) , it was further submitted that the Applicant had not elaborated what, if any, substantial loss he would suffer or even how the appeal would be rendered nugatory if stay is not granted. Accordingly, the Respondent urged that the appeal and motion be dismissed with costs.
13. I have considered the application, the affidavit in support, the preliminary objection, the grounds of opposition and the submissions. The issues that arise for determination are whether the Court has jurisdiction and whether stay pending appeal ought to be granted.
14. The preliminary objection is essentially on the ground that the Appellant lacks locus standi and that consequently, this Court lacks jurisdiction to hear and determine both the application and the appeal for want of proper parties.
15. It is trite that jurisdiction is the very life and soul of any proceedings, without which the proceedings come to a certain end. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR . Proceedings conducted without jurisdiction are a nullity. See National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) .
16. This is an appeal from a judgment and decree rendered by the Subordinate Court in exercise of its jurisdiction under Section 26 (3) and (4) of the Environment and Land Court Act and Section 9 (a) of the Magistrates’ Courts Act . Pursuant to Section 26 (5) of the Environment and Land Court Act , appeals from such decisions lie in this Court.
17. There is no dispute that the Appellant was the Plaintiff in the Subordinate Court and that the Respondent was the Defendant. The judgment was delivered in the said proceedings. In those circumstances, the parties to the proceedings in the Subordinate Court have an automatic right of appeal to this Court.
18. Regarding the question of whether the Appellant had locus standi , I note that locus standi is the right to bring an action or to be heard. See Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR) . The Respondent’s contention is that the Appellant/Applicant did not plead in the Memorandum of Appeal that he filed the appeal in his capacity as a legal representative.
19. It is not disputed that the Appellant has a grant in his favour. On the contrary, and as noted above, it is expressly acknowledged that the Appellant filed the suit in the Subordinate Court in his capacity as a Legal Administrator of the deceased’s estate. As stated earlier, the parties in the proceedings in the Subordinate Court have an automatic right of appeal to this Court. Failure to mention the capacity is an omission which is curable through the filing of an Amended Memorandum of Appeal.
20. Issues of whether amendment of pleadings should be allowed are matters of discretion. It is trite that issues that can be resolved through exercise of discretion cannot be validly raised by way of a preliminary objection. See Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd ( 1969) EA 696 and Oraro v Mbaja [2005] eKLR .
21. Consequently, I find no merit in the preliminary objection. I dismiss it.
22. I now turn to the question of whether stay pending appeal ought to be granted. The Court’s jurisdiction in that regard is circumscribed under Order 42 rule 6 (2) of the Civil Procedure Rules . Pursuant to those provisions, an applicant seeking stay pending appeal must demonstrate that substantial loss will result to him if stay is not granted, and that the application has been made without unreasonable delay. Such an applicant is further required to give such security as the court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR .
23. In the impugned judgment, the Subordinate Court granted title to a 0.5 acre portion of L.R. No. Mwongori Settlement Scheme/458 in favour of the Respondent and among others ordered that the portion be transferred and registered in the Respondent’s favour. I am persuaded that the Appellant would indeed suffer substantial loss if all those processes take place before hearing and determination of the appeal. Thus, the Appellant has surmounted the test of substantial loss.
24. Regarding the requirement that an application for stay pending appeal be filed without unreasonable delay, I note that the judgment was delivered on 17 th June 2026 while the present application was filed less than three weeks later, on 6 th July 2026. There was no unreasonable delay.
25. I therefore find merit in the application for stay. I will limit the life of the stay orders, with a view to encouraging an early hearing and determination of this appeal.
26. In view of the foregoing, I make the following orders:
a) Notice of Preliminary Objection dated 6 th July 2026 is dismissed with costs to the Appellant.
b) Pending the hearing and determination of this appeal, I grant stay of execution of the judgment and decree in Keroka MCELC No. 25 of 2020.
c) The stay order shall, unless extended by the Court, remain in force for a period of only six months from the date of this ruling or until this appeal is determined, whichever occurs first. Consequently, parties are reminded to expeditiously prosecute this appeal.
d) The Appellant shall have costs of Notice of Motion dated 6 th July 2026 .
Dated, signed, and delivered at Nyamira, this 2 nd day of September 2026.
Delivered in the presence of:
Mr Masese for the Appellant
Mr Gichaba for the Respondent
Court Assistant: B Kerubo
1. Litigation leading to this appeal was commenced in the Subordinate Court by the Appellant through Plaint dated 24 th August 2020. Upon hearing the matter, the Subordinate Court (E K Nyutu, Chief Magistrate) delivered judgment on 17 th June 2026 as follows:
The Plaintiff's suit is dismissed.
Judgment is entered for the Defendant on the counterclaim in the following terms:
a. A declaration is hereby issued that the Defendant, Mogoa Andrew Moirore, is entitled to the portion measuring 0.5 acres out of L.R. No. Mwongori Settlement Scheme/458 purchased under the sale agreement dated 31 st December 2017.
b. The Plaintiff, Charles Nyabero Nyanchama, in his capacity as legal administrator of the estate of Nyanchama Kimaiti Peter, shall within sixty days execute all documents necessary to facilitate subdivision, transfer and registration of the said 0.5-acre portion in favour of the Defendant, subject to compliance with all applicable statutory requirements.
c. In default of execution by the Plaintiff within the stated period, the Executive Officer of this Court is authorised to execute the necessary documents on behalf of the Plaintiff.
d. The Land Registrar and County Surveyor, Nyamira County, shall give effect to the subdivision and transfer in accordance with the applicable law, the relevant survey reports and the court orders already on record.
e. The Defendant's claims for general damages and mesne profits are declined for want of strict proof.
f. The Plaintiff shall bear the costs of the suit and the counterclaim .
2. Dissatisfied with the outcome, the Appellant filed this appeal on 30 th June 2026, through Memorandum of Appeal dated 29 th June 2026. Subsequently, the Appellant filed Notice of Motion dated 6 th July 2026, which is the subject of this ruling. The following orders are sought in the application:
1. THAT this matter be certified as extremely urgent and be heard ex-parte in the first instance.
2. THAT pending the hearing of this Application inter-partes on the day of ____ 2026 this Honourable Court do restrain the Land Registrar Nyamira from executing the Decree dated 25 th June 2026 on the 9 th July 2026 or any other date thereafter until this Application for stay is heard and decided.
3. THAT this Court be pleased to grant a Stay of Execution of the Decree dated 25 th June 2026 until this Appeal filed by the Applicant is heard and decided.
4. THAT costs of this Application be provided for .
3. The application is based on the grounds listed on its face and is supported by an affidavit sworn by the Appellant. He deposed that the judgment appealed against was delivered on 25 th June 2026 and that on the very day that this appeal was filed, Counsel for the Respondent wrote to the Land Registrar and County Surveyor Nyamira, requesting them to execute the decree. That on the same day, the Land Registrar wrote to him informing him that they would execute the decree on 9 th July 2026 and that he then alerted his advocate on record who wrote to the Land Registrar and Surveyor on 3 rd July 2026. He further deposed that he would suffer irreparable loss if the decree were to be executed since the appeal would be rendered nugatory.
4. The Respondent reacted to the application by filing Notice of Preliminary Objection dated 6 th July 2026. The objection is on the following grounds:
1. The Appellant, Charles Nyabero Nyanchama, lacks locus standi to lodge or file the appeal or the instant motion dated 06.07.2026 in regard to L.R. Mwongori Settlement Scheme/458, the subject of the alleged appeal herein, which property is registered in the name of Nyanchama Kimaiti Peter (Deceased).
2. The Honourable Court lacks jurisdiction to hear and determine the motion dated 06.07.2026 and the appeal for want of valid and proper parties before it .
5. This ruling is also in respect of the preliminary objection.
6. The Respondent also filed Grounds of Opposition dated 6 th July 2026, raising the following grounds:
1. THAT there is no urgency disclosed in neither the Certificate of Urgency by George Joseph Mogaka Masese dated 06.07.2026 nor the Supporting Affidavit of Charles Nyabero Nyanchama sworn on 06.07.2026. It is abundantly just and fair that both parties be heard before ANY order is issued.
2. THAT absolutely there is no basis at all for exparte hearing of the motion dated 06.07.2026. There is no legal justification for issuance of interim orders.
3. THAT the Applicant has not demonstrated any substantial loss he will suffer if interim or temporary orders are not issued.
4. THAT the application is incompetent, bad in law, an abuse of the court process and an embarrassment to the court and the Respondent.
5. THAT the decree in the lower court is issued by the Honourable Court and the Applicant has not raised any issue with it.
6. THAT the Applicant does not meet the threshold for the grant of orders sought under the cited provisions of law.
7. THAT land cannot be carted away hence there is no chance of prejudice to the Applicant.
8. THAT the Applicant is misleading the court intentionally in order to obtain exparte orders as there is no judgment that was delivered on 25.06.2026.
9. THAT the Respondent is a Judgment Creditor whose rights have accrued and ought to be protected by the Honourable Court.
10. THAT the instant application for interim orders is meant to take advantage of the Respondent and steal a march over him for the reason it was NEVER instituted in the first instance the court that delivered the judgment, as is ordinarily the case .
7. The Respondent further filed a replying affidavit on 5 th August 2026. The uploaded copy is however both illegible and incomplete. I have been unable to make anything of it.
8. The application and the preliminary objection were canvassed together through written submissions. Counsel on record for the Appellant/Applicant filed submissions dated 30 th July 2026.
9. It was submitted on behalf of the Appellant that the preliminary objection was without basis since the Appellant obtained Limited Grant of Letters of Administration Ad Litem and filed the suit on the basis of the said grant. That, consequently, the Appellant was properly before the Court.
10. It was further submitted that the Appellant would suffer irreparable loss if the decree was executed before the Appeal is heard and that in such an event, the appeal would be rendered nugatory. Consequently, the Appellant urged the Court to grant the orders sought in the application.
11. On the other hand, Counsel on record for the Respondent filed submissions dated 3 rd August 2026. It was submitted that the Appellant filed the suit in the Subordinate Court in his capacity as a Legal Administrator of the Estate of Nyanchama Kimaiti Peter (deceased), yet when he filed this appeal, he did not indicate that the appeal was brought in his legal capacity as the Administrator of the estate of the deceased. That, consequently, the Appellant lacks locus standi and the Court does not have jurisdiction to hear an improper party before it. The cases of Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR) , Buchere v Indimuli [2025] KEELC 4085 (KLR) and Hawo Shanko v Mohamed Uta Shanko [2018] eKLR , among others, were cited in support of those submissions.
12. Relying on the cases of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) , Francis K. Chabari & another v Mwarania Gaichura Kairubi [2022] KEELC 1137 (KLR) and Wambua v Kioko [2022] KEHC 197 (KLR) , it was further submitted that the Applicant had not elaborated what, if any, substantial loss he would suffer or even how the appeal would be rendered nugatory if stay is not granted. Accordingly, the Respondent urged that the appeal and motion be dismissed with costs.
13. I have considered the application, the affidavit in support, the preliminary objection, the grounds of opposition and the submissions. The issues that arise for determination are whether the Court has jurisdiction and whether stay pending appeal ought to be granted.
14. The preliminary objection is essentially on the ground that the Appellant lacks locus standi and that consequently, this Court lacks jurisdiction to hear and determine both the application and the appeal for want of proper parties.
15. It is trite that jurisdiction is the very life and soul of any proceedings, without which the proceedings come to a certain end. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR . Proceedings conducted without jurisdiction are a nullity. See National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) .
16. This is an appeal from a judgment and decree rendered by the Subordinate Court in exercise of its jurisdiction under Section 26 (3) and (4) of the Environment and Land Court Act and Section 9 (a) of the Magistrates’ Courts Act . Pursuant to Section 26 (5) of the Environment and Land Court Act , appeals from such decisions lie in this Court.
17. There is no dispute that the Appellant was the Plaintiff in the Subordinate Court and that the Respondent was the Defendant. The judgment was delivered in the said proceedings. In those circumstances, the parties to the proceedings in the Subordinate Court have an automatic right of appeal to this Court.
18. Regarding the question of whether the Appellant had locus standi , I note that locus standi is the right to bring an action or to be heard. See Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR) . The Respondent’s contention is that the Appellant/Applicant did not plead in the Memorandum of Appeal that he filed the appeal in his capacity as a legal representative.
19. It is not disputed that the Appellant has a grant in his favour. On the contrary, and as noted above, it is expressly acknowledged that the Appellant filed the suit in the Subordinate Court in his capacity as a Legal Administrator of the deceased’s estate. As stated earlier, the parties in the proceedings in the Subordinate Court have an automatic right of appeal to this Court. Failure to mention the capacity is an omission which is curable through the filing of an Amended Memorandum of Appeal.
20. Issues of whether amendment of pleadings should be allowed are matters of discretion. It is trite that issues that can be resolved through exercise of discretion cannot be validly raised by way of a preliminary objection. See Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd ( 1969) EA 696 and Oraro v Mbaja [2005] eKLR .
21. Consequently, I find no merit in the preliminary objection. I dismiss it.
22. I now turn to the question of whether stay pending appeal ought to be granted. The Court’s jurisdiction in that regard is circumscribed under Order 42 rule 6 (2) of the Civil Procedure Rules . Pursuant to those provisions, an applicant seeking stay pending appeal must demonstrate that substantial loss will result to him if stay is not granted, and that the application has been made without unreasonable delay. Such an applicant is further required to give such security as the court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR .
23. In the impugned judgment, the Subordinate Court granted title to a 0.5 acre portion of L.R. No. Mwongori Settlement Scheme/458 in favour of the Respondent and among others ordered that the portion be transferred and registered in the Respondent’s favour. I am persuaded that the Appellant would indeed suffer substantial loss if all those processes take place before hearing and determination of the appeal. Thus, the Appellant has surmounted the test of substantial loss.
24. Regarding the requirement that an application for stay pending appeal be filed without unreasonable delay, I note that the judgment was delivered on 17 th June 2026 while the present application was filed less than three weeks later, on 6 th July 2026. There was no unreasonable delay.
25. I therefore find merit in the application for stay. I will limit the life of the stay orders, with a view to encouraging an early hearing and determination of this appeal.
26. In view of the foregoing, I make the following orders:
a) Notice of Preliminary Objection dated 6 th July 2026 is dismissed with costs to the Appellant.
b) Pending the hearing and determination of this appeal, I grant stay of execution of the judgment and decree in Keroka MCELC No. 25 of 2020.
c) The stay order shall, unless extended by the Court, remain in force for a period of only six months from the date of this ruling or until this appeal is determined, whichever occurs first. Consequently, parties are reminded to expeditiously prosecute this appeal.
d) The Appellant shall have costs of Notice of Motion dated 6 th July 2026 .
Dated, signed, and delivered at Nyamira, this 2 nd day of September 2026.
Delivered in the presence of:
Mr Masese for the Appellant
Mr Gichaba for the Respondent
Court Assistant: B Kerubo