Introduction
1. The application before the court for consideration is dated 25th February 2025 in which the appellants/applicants (hereinafter referred to as the applicants) seeks an order to stay proceedings in Iten MCELC No. 9 of 2007 pending hearing and determination of the application and the appeal.
2. The application is premised on the grounds on its face and the supporting affidavit of James Rotich sworn on 25th February, 2025. He avers that execution proceedings are underway in respect of a tribunal decision rendered in 2007; that the trial court dismissed the applicants’ application challenging the legality of the execution which commenced outside the legally prescribed period of 12 years; that the matter is coming up on 26th March, 2025 for the Land Adjudication and Settlement Officer, Marakwet East to explain to court why orders issued in 2011 and 2019 have not been enforced.
3. It is their contention that if an order staying the proceedings in the matter before the lower court are not granted, the appeal and application shall be rendered nugatory. He avers that the application has been brought timeously and the respondents shall not suffer any prejudice if the orders sought are granted.
4. The application is opposed vide the replying affidavit of Richard Chelang’a Kanda sworn on 21st March, 2025. He deposes that there was a land dispute between Kirawa and Kabarawa clans in respect of 67 parcels of land situated at Tuturung Adjudication Section, Marakwet East Sub County, Elgeyo Marakwet County which was resolved by the Marakwet Land Dispute Tribunal on 26th February, 2007; that the award by the tribunal was adopted as judgment of the court on 23rd March 2011 and a decree issued on 7th June 2011.
5. On 11th April 2016, the applicants filed an application seeking stay of execution of the award adopted by the court on 23rd March, 2011. The application was dismissed with costs. Undeterred, the applicants filed Eldoret ELC No. 2 of 2016 seeking leave to commence Judicial Review proceedings to stay the decision of the tribunal and prohibit the 1st respondents from executing the judgement. This application was also dismissed on 28th October, 2017.
6. When the decree issued in 2011 was served upon the Land Adjudication officer, Catherine Yator, she wrote a letter dated 3rd October 2017 asking the court to clarify how the land was to be divided. The court on 17th July 2019, directed that the land be divided vertically as per the availed sketch map.
7. Five years later, the applicants filed the application dated 24th October 2024 which is subject of this appeal, seeking an order that execution of the judgement and consequential orders of the Land Dispute Tribunal be declared illegal and null. This application was dismissed by Hon. Adhiambo SPM Iten, on 4th February 2025 and a notice to show cause issued to the Land Adjudication and Settlement Officer, Marakwet East to attend court and explain why the orders issued in 2011 and 2019 have not been enforced.
8. It is the 1st respondents case that the instant application has been brought in bad faith and is an attempt to frustrate the 1st respondents from enjoying the fruits of the judgment which has never been appealed against; that the applicants are trying to adjudicate over matters that have already been determined; that the applicants have not demonstrated any justifiable ground for the court to stay the proceedings in Iten MCELC No. 9 of 2007. It is their case that execution was commenced within the 12 years the decision was rendered in 2011 but could not be concluded due to ambiguity of the court order. It is their contention that the continued occupation by the applicants in collusion with the Land Adjudication and Settlement Officer Marakwet East is detrimental to the 1st respondents who are lawful proprietors of half the land and who have been denied use for over 14 years.
9. The 2nd respondent also opposed the application vide a notice of preliminary objection dated 24th March 2025 and an affidavit sworn on even date by Mwenda Munoru, the District Land Adjudication Officer, Elgeyo Marakwet County. The notice of preliminary objection was abandoned on 29th May, 2025.
10. In his affidavit, Mwenda Munoru averred that the judgement issued in 2011 was fully implemented by granting the two clans equal shares; that no order issued in 2019 has been served upon them; that the two clans have voluntarily subjected their land to the provisions of the Land Adjudication Act, Cap 284 and the processes outlined in the Act have been undertaken; that the District Land Adjudication Officer Elgeyo Marakwet County, has not issued any written consent to any of the parties in this matter in accordance with Section 30 of the Land Adjudication Act , Cap 284, thus rendering the proceedings premature and improper before the court ; that it is against the law for the same dispute to be adjudicated under two separate statutes simultaneously. It is their case that allowing these proceedings to continue while the adjudication process is ongoing, would amount to forum shopping and an abuse of the court process.
11. Pursuant to directions given on 29th January 2025, the application was canvassed by way of written submissions.
SUBMISSIONS
Applicant’s submissions.
12. The applicants filed submissions on 19th June 2025 and identified one issue for determination which is whether the application has met the prerequisites of Order 42 Rule 6 of the Civil Procedure Rules, 2010 to warrant grant of stay of proceedings. They submitted that they have met the principles set out in the case of William Odhiambo Ramogi & 2 Others v The Honourable Attorney General & 3 Others (2019) e KLR.
13. To demonstrate that they have met the following conditions set out in the above cited case, which are; whether it is in the interest of justice to order stay of proceedings, the pros and cons of granting or not granting the order, 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.
14. They submitted that they had filed a memorandum of appeal and an application for stay of proceedings before the appellant court; that they had demonstrated that the appeal is arguable as it raises a serious issue of law on execution of judgements, (the lower court’s decision was executed after expiry of 12 years without leave of court), that the appeal would be rendered nugatory if proceedings in the lower court are not stayed as the appeal is premised on the legality of the execution proceedings; that the applicant has demonstrated that there are exceptional circumstances as the matter was concluded in 2007 and execution commenced outside the statutory period without leave of court and that the application was filed expeditiously.
1st Respondents submissions
12. The 1st respondents filed submissions dated 9th June 2025 and gave a background of the application and the appeal. They identified two issues for determination. These are;
i) Whether the applicant has satisfied the conditions for grant of stay of proceedings in Iten MCELC NO. 9 OF 2007 pending hearing and determination of the appeal;
ii) Who should be awarded costs of the application.
13. On whether the appellants have satisfied the conditions for grant of an order staying proceedings in Iten MCELC NO. 9 of 2007 pending hearing and determination of the appeal, it is submitted that there are no proceedings to be stayed because the 1st respondents were proceeding with execution. The 1st respondents fault the applicants for having brought the application under Order 42 Rule 6 of the Civil Procedure Rules which deals with stay of execution not stay of proceedings, while their application seeks stay of proceedings. It is their case that the application lacks merit, is premised on the wrong provisions of the law and that the applicants do not understand what they are seeking before this court. They placed reliance on the case of Turbo Highway Eldoret Ltd v Muniu Civil Appeal E040 of 2021 [2022] KEHC 10197 (KLR).
14. They submitted that the applicants have not satisfied the principles set out in the case of Christopher Ndolo Mutuku & Another v Cfc Stanbic Limited [2015] KEHC 6751 (KLR) and they are intentionally delaying the execution process so that the ongoing adjudication process can be finalized which is intended at having the applicants registered as the only proprietors of the suit parcel.
15. It is further submitted that the application and appeal have been filed with the intention to shield the 2nd respondent from enforcing the judgement and from being held accountable to explain to court why execution has not commenced despite the court orders. They urge the court not to grant the orders sought. However, in the event that the court is inclined to grant an order staying the proceedings, an order be issued directing the Land Adjudication Officer, Marakwet East, to halt the ongoing adjudication process in the suit parcels pending hearing and determination of the appeal.
16. On costs, it is submitted that Section 27 of the Civil Procedure Act (Act) should apply with discretion derived from the provisions of Sections 1A, 1B and 3A of the Act.
Analysis and Determination.
17. I have considered the application, the grounds, affidavits in support and opposition, submissions and the law. I find the sole issue for determination to be whether the applicant has satisfied the conditions to be granted the orders sought.
18. The law on stay of proceedings is provided for in Order 42 Rule 6 (1) of the Civil Procedure Rules as follows;
No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 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.
19. In the case of Christopher Ndolo Mutuku & Another v Cfc Stanbic Bank Limited [20151 KEI-IC 6751 (KLR) (Supra) the court set out the principles to be considered when granting an order for stay of proceedings thus:
" The Court is aware the Defendant has unfettered right of appeal which it has sought to exercise. But that right has to be balanced against the right of the Plaintiff to equal treatment in law and to have his case determined without unreasonable delay. That constitutional desire demands that proceedings should not be hindered without just and sufficient cause. That position of the law is informed by the principle of justice in Article 159 of the Constitution which expresses the now commonly principle of law known as the overriding objective of the law; that cases should be disposed of in a just, proportionate, expeditious and affordable manner. That explains why the law on stay of proceedings pending appeal will be concerned with the sole question of whether it is in the interest of justice to order a stay of proceedings. And in deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. It will also consider 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. "
20. The rationale for the conditions aforementioned was aptly given in the case of Turbo Highway Eldoret Ltd v Muniu [20221 KEHC 10197 (KLR) which quoted Halsbury's Laws of England, 4th Edition, Vol. 37 at p. 330 thus; "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 proceedings, beyond 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...lt will 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 this case."
15. Turning to the case before this court, it is not in doubt that this case has been in court for close to twenty (20) years. The dispute between Kirawa and Kabarawa clans started way back and was resolved by Marakwet Land Dispute Tribunal on 26th February, 2007. The award of the Tribunal was adopted as judgment of the court on 23rd March 2011 and a decree issued on 7th June 2011. No appeal was filed.
16. On 11th April 2016, the applicants filed an application seeking stay of execution of the award. The application was dismissed with costs. The applicants then filed Eldoret ELC No. 2 of 2016 seeking leave to commence judicial review proceedings to stay the decision of the tribunal and prohibit the 1st respondents from executing the decision of the tribunal. This application was also dismissed on 28th October, 2017. On 18th April 2019, the 1st respondents filed an application seeking guidance from the court whether to divide the land vertically or horizontally. The answer was given on 17th July 2019 that the land be divided vertically as per the availed sketch map.
17. Five years later, the applicants filed an application dated 24th October 2024, which is the subject of this appeal, seeking that execution of the judgement and consequential orders of the Land Dispute Tribunal be declared illegal and null. This application was also dismissed.
18. I have looked at the history of this case, the affidavit of Mwenda Munoru, the District Land Adjudication Officer, Elgeyo Marakwet County and the proceedings in the lower court matter. In her ruling delivered on 4th February 2025, the honorable magistrate held in part;
“The award issued by the tribunal on 26/2/2007 could not be executed due to ambiguity in terms of how the suit property was to subdivided and it only became capable of being executed after the court pronounced itself as to how the suit property was to be subdivided. It goes without saying that the application dated 31/7/2024 was for an action in furtherance of the application for execution for the subsequent order/decree issued on 17/7/2019 as such it is not statute barred.” Emphasis mine
19. From the history set out herein above, the applicants have in the last twenty years filed several applications aimed at halting the process of executing the orders issued in 2011 and 2019. Article 159 of the Constitution demands that proceedings should not be hindered without just and sufficient cause. The court has a duty to uphold the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court. Courts are required to dispose cases in a just, proportionate, expeditious and affordable manner. It follows therefore, that stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue.
20. In the circumstances of this case, if the court grants an order for stay of proceedings, it will impede the overriding objective of the court in disposing cases in a just, proportionate, expeditious and affordable manner and will succeed in aiding the applicants who have not demonstrated any exceptional circumstances to the satisfaction of the court to warrant such an order, in their continued wastage of precious judicial time in adjudicating over matters that have already been determined. In my view, this application is another attempt by the applicants to interfere with the ongoing execution process.
21. For the above reasons, I find the application dated 25th February 2025 devoid of merit and l dismiss it with costs to the respondents.
22. Orders accordingly
Dated, signed and delivered virtually at Iten this 10th day of July, 2025
ln the presence of ;-
Ms Munyoru for the Appellants/ Applicants
N/A for the 1st Respondent
N/A for the 2nd Respondent
Court Assistant; Christine