MARGARET NDUTA MWANGI VS Ministry of Lands and Physical Planning AND MBIU WAIHARO AND 1 Others

I.   Introduction

1.   Before this Honourable Court for its determination is the Notice of Motion application dated 2nd March 2026 filed by Mbiu Waiharo, the 1st Defendant/Applicant herein. It seeks for  stay of proceedings in Kwale ELC Case No. E041 of 2024 pending the hearing and determination of Summons for Revocation of Grant in “the Kiambu Chief Magistrate’s Court Succession Cause No. 205 of 2018” at Thika Law Courts (Hereinafter referred to as ”The Succession Cause”). The Application was brought under the provision of Articles 25 (c), 47 and 50(1) of the Constitution of Kenya, 2010; Sections 1A, 1B, 3, 3A ,6 and 80 of the  Civil Procedure Act, Cap 21 Laws of Kenya; Order 22 Rule 22, 51 & 52 and Order 51 Rule 1 of the Civil  Procedure Rules 2010 and all other enabling provisions of the law.

2.   Upon service of the Application, Margaret Nduta Mwangi, the Plaintiff/Respondent herein, filed a Replying Affidavit sworn on 18th March 2026 opposing the application. The Plaintiff/Respondent further filed written submissions dated 9th April 2026 urging the Court to dismiss the application with costs.

3.   The 1st Defendant/Applicant also filed written submissions dated 1st April 2026 in support of the Motion, reiterating that the Plaintiff’s locus standi is under challenge in the succession cause and that proceeding with this suit risks conflicting judicial determinations.

4.   For good order and consensus of the parties, the matter was canvassed by way of affidavits and written submissions filed by both parties, which now form the basis of this ruling.

II.   The case by the 1st Defendant/Applicant

5.   The 1st Defendant/Applicant sought for the following orders: -

a)   Spent.

b)   THAT this Honourable Court be pleased to order stay of the hearing, determination and all further proceedings in Kwale ELC Case No. E041 of 2024 pending the hearing and determination of the Summons for Revocation of Grant filed in Kiambu Chief Magistrate’s Court Succession Cause No. 205 of 2018 in the matter of the estate of Stephen Flavian Mwangi (deceased).

c)   THAT pending the determination of this Application inter partes, this Honourable Court be pleased to issue interim orders staying all proceedings in this suit.

d)   THAT this Honourable Court be pleased to direct that the Plaintiff shall not take any further procedural or substantive steps in this suit pending determination of the said succession proceedings.

e)   THAT this Honourable Court be pleased to hold that the continuation of these  proceedings before the determination of the said succession proceedings would amount  to parallel litigation and an abuse of the court process.

f)   THAT this Honourable Court be pleased to preserve the status quo in respect of the suit property Kwale/Majoremi/1289 pending determination of the succession proceedings.

g)   THAT this Honourable Court be pleased to make such further or other orders as it may  deem fit and just in the circumstances.

h)   THAT the costs of this Application be in the cause.

6.   The application was premised on the grounds, facts and testimony and averments made out under the Supporting Affidavit of MBIU WAIHARO, the 1st Defendant/Applicant herein, sworn on 2nd March 2026, together with annexures marked “MW - 1 to MW – 7” wherein he averred that:

a)   He was the Applicant herein, conversant with the facts giving rise to the application and therefore competent and duly authorized to swear the affidavit.

b)   He was the 1st Defendant in the suit and thus competent to swear the affidavit.

c)   The Plaintiff had instituted the present proceedings claiming that land parcel Kwale/Majoremi/1289 formed part of the estate of the late Stephen Flavian Mwangi.

d)   The Plaintiff purported to bring the suit in her capacity as a personal representative of the estate pursuant to a grant issued in Succession Cause No. 205 of 2018 at the Chief Magistrate’s Court at Kiambu.

e)   A Summons for Revocation of Grant had been filed in the said succession cause challenging the legality and validity of the grant relied upon by the Plaintiff, and annexed copies of the pleadings marked as “MW -1”.

f)   The said revocation proceedings directly challenged the authority of the Plaintiff to represent the estate and consequently her capacity to maintain the present suit, noting that the matter was set to be heard on 7th May 2026 and the outcome would certainly affect the current suit. Annexures from the judiciary e‑filing system were produced and marked as “MW – 2”.

g)   The outcome of the revocation proceedings would determine whether the Plaintiff had any lawful standing to prosecute the suit and whether the suit property formed part of the estate of the deceased.

h)   Proceeding with the present suit before determination of the succession proceedings would create a serious risk of conflicting judicial determinations.

i)   The Family Court seized of the succession proceedings was the proper forum to first determine matters concerning administration of the estate and the scope of estate property.

j)   Unless this Honourable Court intervened and stayed the proceedings, the Court would be called upon to adjudicate issues whose foundation was presently under challenge before another competent court.

k)   It was just and equitable that the present proceedings be stayed pending determination of the revocation proceedings.

l)   Unless the orders sought were granted, the Applicant would suffer substantial loss since the matter would be heard in this Court while the outcome in the succession court was still pending.

m)   The orders impugned herein were issued courtesy of no fault of the 1st Defendant/Applicant but for reasons fully explained in the application and other supporting documents filed.

n)   Without the orders sought to stay proceedings, the Applicant stood to suffer irreparably as there was imminent threat of the matter being heard and determined while revocation was pending in court.

o)   Denial of the orders staying further proceedings in the interim pending hearing and determination of Succession Cause No. 205 of 2018 would render the application nugatory and its prosecution an academic exercise, the grant having been confirmed and remaining in force.

p)   The Respondent stood to suffer no prejudice should the application be allowed as prayed.

q)   It was in the interest of justice and fair play that the orders sought be granted.

r)   He was ready and willing to abide by any terms and conditions that the Court deemed necessary to grant the prayers sought in the application.

s)   Grant of the injunctive orders sought would ensure preservation of the suit property until the matter was concluded and effectively determined, thereby protecting the proprietary interests of the parties.

t)   The application had been made without unreasonable delay and that it was in the interest of justice that the orders sought be granted.

III.   The responses by the Plaintiff/Respondent

7.   The Plaintiff/Respondent, MARGARET NDUTA MWANGI, responded to the Application through a 25 paragraphed Replying Affidavit sworn on 18th March 2026, wherein the Affiant averred as follows:

a.   She was the Plaintiff/Respondent herein, conversant with the facts giving rise to the matter and therefore competent and duly authorized to swear the affidavit.

b.   She had read and had the contents of the 1st  Defendant/Applicant’s Application dated 2nd March, 2026 explained to her, which application she found dishonest, frivolous, vexatious and an outright abuse of the court process made solely as an attempt to delay and derail the matter.

c.   At all material times she was the absolute and rightful owner of land parcel known as Land Reference Numbers Kwale/Majoremi/1289 (Hereinafter referred to as “The Suit Property”), allocated to her as a beneficiary in the Succession Cause in the matter of the Estate of Stephen Flavian Mwangi (Hereinafter referred to as “The Deceased”).

d.   She was married to one Stephen Flavian Mwangi alias Stephen Mbocha Mwangi on 9th May 1963 in a marriage solemnized at Mangu, Kiambu. (Annexed in the affidavit and marked as “MNM ‑ 1” was a copy of the Certificate of Marriage No. 035576).

e.   In his lifetime, her late husband, had acquired the suit property and on 18th August 1986 obtained a title deed for the suit property from the Kwale District Land Registry. (Annexed in the affidavit and marked as “MNM ‑2” was a copy of the original Title Deed dated 18th August 1986).

f.   On 11th May 1994, her husband used the title deed for the suit property as bond to stand surety for his brotherinlaw, John Bosco Kamau, who had been charged in Criminal Case No. 1759/94, Republic – Versus - John Bosco Kamau, in the Senior Principal Magistrate’s Court at Nairobi. (Annexed in the affidavit and marked as “MNM – 3” was the Bail and Bond Form issued in Criminal Case No. 1759/94).

g.   The accused, John Bosco Kamau, was eventually convicted and sentenced to serve time in prison, and her husband was at liberty to collect the title deed for the suit property having discharged his duty as a surety. However, due to unforeseen circumstances he did not pick the title deed from the court.

h.   Her husband later died on 18th June 1999 and she commenced succession proceedings in the Succession Cause, in the estate of Stephen Flavian Mwangi. (Annexed in the affidavit and marked as “MNM – 4” was a copy of the Certificate of Death dated July 1999).

i.   On 3rd April 2019, Grant of Letters of Administration to the Estate of Stephen Flavian Mwangi (deceased) was lawfully and procedurally issued to her as the Legal Administratix of the estate.

j.   The Grant of Letters of Administration to her deceased husband’s estate was confirmed on 5th November, 2020 and later amended on 8th December, 2022 to correct the number of the title of the suit property which had been erroneously indicated. She was also allocated the suit property as a beneficiary of the said estate. (Annexed hereto and marked as “MNM – 5” was a copy of the letter dated 3rd October, 2022 for amendment of the Grant and the Amended Certificate of Confirmation of Grant dated 8th December 2022).

k.   She tried to trace the original title deed for the suit property in the Senior Principal Magistrate’s Court registry at Nairobi but was informed that the records and the court file for Criminal Case No. 1759/94 had since been destroyed, and later she obtained a letter from the court stating that the title could not be traced. (Annexed hereto and marked as a bundle as “MNM – 6” were documents relating to disposal of old court records ranging from the year 1971 to 1998 and the letter dated 21st May 2025 stating that the title could not be traced).

l.   She was then advised to make an application to the Kwale County Land Registry for replacement of the lost title. Before commencing the application for replacement of the lost title, she decided to make an application for official search for the suit property to confirm that the title for the suit property was still in her late husband’s name. (Annexed hereto and marked as “MNM – 7” was the application for official search and the payment receipt dated 6th May 2024).

m.   Upon receiving the Certificate of Official Search and the Green Card for the suit property she was astonished to discover that the suit property had been transferred and a title deed was issued to the Applicant, Mbiu Waiharo, on 8th May 2020 and later the suit property was transferred again to a third party, Zakayo Muriuki Mbogori, with a title deed issued on 8th June 2021. (Annexed hereto and marked as “MNM – 8” was a copy of the Certificate of the Official Search and the Green Card for the suit property dated 6th May 2024).

n.   In a bid to recover the suit property she moved to court on 24th June 2024 and filed this Civil Suit “Kwale Environment and Land Court Case No. ELCLC/E041/2024: Margaret Nduta Mwangi – Versus - Mbiu Waiharo, Zakayo Muriuki Mbogori and Registrar of Lands – Kwale”.

o.   On 17th December 2024 the court issued consent orders as follows:

“1.THAT the status quo of the Land Parcel Kwale/Majoremi/1289 shall be maintained and the 3rd Defendant is hereby prohibited from registering any further interests in the suit property such as sale, transfer, charge, subdivision pending the hearing and determination of this suit.

2. THAT there shall also be no further developments on the suit property.”

(Annexed in the affidavit and marked as “MNM – 9” was a copy of the order made in the Kwale ELC case on 17th December 2024)

p.   For a long time, the 1st Defendant/Applicant, being the main culprit who stole the suit property by way of forgery, refused to file any response in the case.

q.   It was therefore shocking that while the matter was still pending and the 1st Defendant/Applicant had not filed any Defence rushed to the Kiambu Magistrate’s Court Succession Cause No. 205 of 2018 in the estate of Stephen Flavian Mwangi (deceased) and filed Summons for Revocation of Grant dated 24th September 2025 seeking revocation of the grant solely on the allegation that he had purchased the suit property Kwale/Majoremi/1289 from the deceased. (Annexed in the affidavit and marked as “MNM  10” was the application for revocation of grant and the Replying Affidavit thereto).

r.   It was in the said Summons for Revocation of Grant that for the first time the 1st Defendant/Applicant attached a forged sale agreement dated 2nd April 1997 alleging it to be a sale agreement between the deceased and himself.

s.   It was not until 8th December 2025 that the 1st Defendant/Applicant filed a Statement of Defence in this matter making the same allegations of having purchased the suit property Kwale/Majoremi/1289 from the deceased and attaching the forged sale agreement, but he was not keen on the matter being heard in full.

t.   She had never sold, transferred or disposed of the suit property to anyone, especially the 1st Defendant/Applicant, as the process of transmission of the suit property from her late husband’s name to her name had never been done.

u.   When the transfers of the suit property to the Applicant occurred in the year 2020 and 2021, her husband was incapable of transferring the suit property to any other person as he was already deceased and had been deceased for over 20 years.

v.   The transfer of the suit property to the 1st Defendant/Applicant and the third party were therefore illegal, fraudulent, unprocedural and done without consent, authority or permission of either herself or her late husband, who was hitherto the registered owner of the suit property, which issues could only be canvassed with evidence in the full hearing of the case.

w.   The Application herein was therefore frivolous, vexatious, an abuse of the process of the court and without merit whatsoever for the following concise reasons:

i.   The Plaintiff/Respondent filed this suit claiming that the 1st Defendant/Applicant and others stole her land the suit property KWALE/MAJORENI/1289;

ii.   The 1st Defendant/Applicant instead of defending this suit and proving how he acquired the suit property rushed to the Succession Cause and filed Summons for Revocation of Grant dated 24th September 2025 seeking revocation of the grant solely on the allegation that he had purchased the suit property KWALE/MAJORENI/1289 from the deceased;

iii.   It was a fact that under the provision of Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 (2) of the Environment and Land Court Act, 2011, the Environment and Land Court (ELC) has jurisdiction over land matters primarily giving the court power to hear and determine disputes concerning land use, tenure, title, boundaries, and administration.

iv.   It therefore follows that it is only this court that can determine the dispute herein over who is the genuine and lawful owner of the suit property:

v.   It was not only preposterous, but outright disingenuous that the 1st Defendant/Applicant attempts to have the court with jurisdiction over the suit stay the substantive proceedings before it pending determination of an application before the Honourable Magistrates’ court, which court legally speaking lacks jurisdiction to hear and determine an application predicated on an alleged and disputed sale of the suit property;

x.   She was apprehensive that the 1st Defendant/Applicant was keen to use the said Summons for Revocation of Grant and the application herein for no other purpose other than to delay and derail the ownership suit; of immediate importance to the 1st Defendant/Applicant was to ensure that the matter did not proceed to full hearing on 15th April 2026.

yz.   The 1st Defendant/Applicant’s application dated 2nd March 2026 should therefore be dismissed with punitive costs as the abuse of the process of court that it was.

IV.   The Further Affidavit of the 1st Defendant/ Applicant

8.   The 1st Defendant/ Applicant, Mbiu Waiharo, responded to the Replying Affidavit through a 34 Paragraphed Further Affidavit sworn on 24th March, 2026, wherein the Affiant averred as follows that:

i.   He had read and understood the Replying Affidavit by Margaret Nduta Mwangi dated 18th March 2026 and was competent to respond thereto.

ii.   Save where expressly admitted, he vehemently denied each and every allegation contained therein as if the same were set out and specifically traversed.

iii.   At the very outset, the said Replying Affidavit was fundamentally defective, incompetent and misleading as it was largely anchored on matters pending before another court. The Affiant deponed that it was legally untenable for introducing and canvassing matters that fell wholly and exclusively within the jurisdiction of the Succession Court.

iv.   Before substantially responding to the issues raised in the Replying Affidavit, he wished to highlight certain matters for clarity purposes.

v.   As the former legal and beneficial owner of the suit property parcel of land known as Kwale/Majoremi/1289, he was not involved whatsoever in the succession process, and neither were the 2nd, 4th and 5th Defendants.

vi.   The entire succession process was still pending for revocation before the Kiambu Magistrate’s Court.

vii.   The contents of Paragraph 3 of the Replying Affidavit, in so far as it questioned or alluded to the legitimacy or status of the administrator, raised a pure succession issue reserved exclusively for the Succession Court and was wholly irrelevant to the present application for stay.

viii.   The contents of Paragraph 4, which challenged or discussed the issuance and/or propriety of the grant, directly fell within the ambit of the summons for revocation of grant pending in the Kiambu Succession Cause and was improperly before this Court.

ix.   The contents of Paragraph 5, to the extent that it alleged intermeddling with the estate property since her husband had acquired the title deed, was a matter expressly governed under succession law and was actively in issue before the Succession Court, thus rendering the same misplaced herein.

x.   The contents made under Paragraph 6, which touched on entitlement, control, or dealings with estate property, was a matter of administration and distribution of the estate, and therefore outside the jurisdiction of this Honourable Court.

xi.   The contents made under Paragraph 8, in so far as it sought to justify actions taken under or pursuant to the grant, was a matter that could only be interrogated within the Succession Cause where the validity of such grant was under challenge.

xii.   The contents made under Paragraph 9, which purported to assert rights or interests over the estate property, raised questions of beneficiary entitlement, which were exclusively determinable by the Succession Court.

xiii.   The contents made under Paragraph 10, to the extent that it advanced claims relating to ownership derived through succession processes, was premature and procedurally improper as the underlying succession dispute remained unresolved.

xiv.   Under Paragraph 12, which attempted to justify the Plaintiff’s standing, was fatally defective as it ignored the fact that the Plaintiff had since been divorced by the deceased husband [a fact to be raised in the succession court on issues of wives and former wives], a matter that directly affected her locus standi and entitlement, and which had to be determined within the Succession Cause.

xv.   The Paragraph 16, which raised issues concerning the handling, management, or alleged misuse of estate property, was a matter squarely before the Succession Court and could not be litigated in parallel before this Honourable Court.

xvi.   The Paragraph 17, to the extent that it invited this Honourable Court to make findings on matters touching on administration of the estate and search documents of ownership, was a blatant invitation to the Court to exceed its jurisdiction, which invitation had to be firmly declined.

xvii.   The Paragraph 20, which advanced arguments on rights over the suit property rooted in succession, was premature, speculative, and dependent on the outcome of the Succession Cause.

xviii.   The Paragraph 22, which purported to consolidate or conclude the Plaintiff’s claim over the estate property, was entirely anchored on unresolved succession issues and was therefore incompetent and irrelevant to the present proceedings.

xix.   The abovecited contents under Paragraphs (3, 4, 5, 6, 8, 9, 10, 12, 16, 17, 20 and 22) collectively constituted the substantive foundation of the Replying Affidavit, yet they:

a)   Did not address the Application for stay;

b)   Introduce extraneous succession matters; and

c)   Amounted to a collateral attack on proceedings pending before the Succession Court.

xx.   This Honourable Court was being improperly invited to determine the legitimacy of the administrator, validity of the grant, entitlement to the estate, and alleged intermeddling, all of which were exclusively reserved for the Succession Court.

xxi.   The Plaintiff/Respondent’s conduct further amounted to a fundamental distortion of the legally prescribed procedural framework governing disputes of that nature.

xxii.   The Plaintiff/Respondent’s conduct was not merely irregular but constituted a deliberate and calculated subversion of the established procedural architecture of the law, amounting to egregious forum shopping, abuse of court process, and a cynical attempt to manipulate parallel jurisdictions to her advantage.

xxiii.   In disputes where issues of ownership intersected with succession, the law was settled and admitted of no deviation, that a party had to first invoke the jurisdiction of this Honourable Court to ascertain and conclusively determine proprietorship of the disputed property, particularly where such ownership was contested.

xxiv.   It was only upon such determination that the Succession Court could properly and lawfully exercise its mandate of administration, confirmation of grant, and eventual transmission of the estate, as it lacked jurisdiction to distribute or transmit property whose ownership was unresolved or under contest.

xxv.   The Plaintiff/Respondent had, however, in flagrant disregard of this settled legal position, commenced proceedings in the Succession Court, procured a contested and impugned confirmed grant, and then sought to improperly enlist this Honourable Court to retrospectively validate that process by confirming ownership through the grant, which was nothing short of putting the cart before the horse and an affront to the orderly administration of justice.

xxvi.   This Honourable Court could not and must not be converted into a forum for the retroactive sanitization, validation or laundering of procedural and substantive illegalities, and to countenance such an approach would be to legitimize a dangerous precedent where parties deliberately acted outside the law and thereafter sought judicial endorsement of their own irregularities.

xxvii.   The procedural sequence in law had been completely inverted, in that the issues of entitlement, administration, and legitimacy of the grant were already live before the Succession Court, yet the Plaintiff sought to use this Court to influence, preempt, or sanitize that process.

xxviii.   The only lawful and procedurally sound course was for the Succession Cause No. 205 of 2018 to be heard and determined first, as it directly addressed the foundational issues of entitlement and administration.

xxix.   The Plaintiff/Respondent’s Replying Affidavit was therefore a misconceived and incompetent response, wholly incapable of defeating the application for stay.

xxx.   This Honourable Court was dutybound to jealously guard its jurisdiction and to decline any invitation to delve into matters reserved for another competent court.

xxxi.   In the premises, this Honourable Court was called upon to frown upon, reject, and disregard the impugned Replying Affidavit to the extent of its impropriety.

xxxii.   What was before the Court was not a genuine land dispute but a disguised succession contest, improperly presented to invoke the jurisdiction of the Court.

xxxiii.   The continuation of the proceedings in parallel with the Kiambu Succession Cause No. 205 of 2018 would inevitably result in:

a)   Conflicting decisions.

b)   Duplication of proceedings and/or embarrassment of the judicial process.

xxxiv.   The issue of the Plaintiff/Respondent’s relationship with her deceased husband as a former wife further underscored the necessity of ventilating all questions of entitlement before the Succession Court, which alone had jurisdiction to determine such matters.

xxxv.   She swore the affidavit in further support of the application for stay and prayed that the same be allowed with costs.

xxxvi.   She humbly urged the Honourable Court to allow the application for stay of proceedings and order that the proceedings be held in abeyance pending the hearing and determination of Kiambu Chief Magistrate’s Court Succession Cause.

V.   Submissions

9.   While the parties were present in Court, directions were issued that the Notice of Motion application dated 2nd March 2026 filed by the 1st Defendant/Applicant be disposed of by way of written submissions. All the parties complied with the Court’s directions. Pursuant thereto, on the 14th April, 2026, a ruling was delivered by the Court accordingly.

A.   The Written Submissions by the 1st Defendant/ Applicant

10.   The 1st Defendant/Applicant through the Law firm of Messrs. King’ang’i & Mutahi Advocates LLP filed their written submissions dated 1st April, 2026. Mr. King’ang’i Advocate  averred that the submissions were filed in support of the Applicants’ Notice of Motion dated 2nd March 2026 seeking, inter alia, that this Honourable Court be pleased to stay the hearing, determination and all further proceedings in the suit pending the hearing and determination of the summons for revocation of grant filed in the Chief Magistrate’s Court at Kiambu, Succession Cause No. 205 of 2018, in the matter of the estate of Stephen Flavian Mwangi (deceased).

11.   The basis of this Application was that the Respondents had inverted the procedure of  conducting court matters where the issues of succession and ownership by third parties  are intertwined. Instead of coming to the environment and land court to first ascertain  ownership, the respondent procured the impugned certificate of confirmation of grant  in the succession court, then later sought to have this court sanitize the same by claiming  ownership. Consequently the confirmed grant was issued ex - parte, contrary to the  principles of natural justice and the provision of Article 50 (1) of the Constitution guaranteeing the right  to a fair hearing. The Applicants further contend that this entire proceeding are irregular, without  jurisdiction, and marred by procedural impropriety, warranting the Court’s intervention  “ex debito justitiae’.

12.   The Learned Counsel submitted that these submissions were therefore made in firm support of the Application  seeking a stay of proceedings herein pending the hearing and determination of the Succession Cause. The Application raises a threshold jurisdictional and procedural question, namely whether this  Honorable Court ought to proceed in the face of live, substantive, and determinative issues  pending before a competent Succession Court.

13.   The Plaintiff/Respondent’s Replying Affidavit was, with respect, a study in misdirection, as it wholly evades the  issue of stay and instead advances a collateral succession dispute, thereby inviting this Court into  terrain that was jurisdictionally forbidden. The Application was grounded on the Supporting Affidavit and further affidavit of MBIU  WAIHARO, wherein it is expressly deponed that: the Plaintiff’s claim is anchored on a grant  issued in the said succession cause, the said grant is actively under challenge through a Summons  for Revocation of Grant (annexures “MW1”) and the outcome of those proceedings will  determine both the Plaintiff’s locus standi and the status of the suit property.

14.   The present suit is therefore not autonomous, but parasitic upon and sub - ordinate to the  succession proceedings. The Plaintiff/Respondent’s Replying Affidavit was a deliberate misdirection, as it fails to respond to the  Application for stay and instead raises pure succession issues already pending determination  elsewhere. The Court is therefore called upon, at the very outset, to reassert the primacy of  jurisdiction, procedural order, and judicial discipline.

15.   On the issues for determination, the Learned Counsel relied on the following: -

a.   Whether this Honorable Court should stay these proceedings pending the determination of  Kiambu Succession Cause No. 205 of 2018.  

b.   Whether the issue of procedural illegality should be condoned.  

c.   What orders should this honorable court make on the question of costs?

16.   On whether this Honourable Court should stay these proceedings pending the determination of Kiambu Succession Cause No. 205 of 2018. The Learned Counsel submitted that the law on jurisdiction remains settled, firm, and uncompromising. To buttress his point, the Counsel cited “the Classicus locus” case of:- “Owners of the Motor  Vessel “Lillian S” -Versus - Caltex Oil (Kenya) Ltd [1989] KLR 1”, the Court of Appeal authoritatively  pronounced that:

“Jurisdiction is everything. Without it, a court has no power to make one  more step…”

17.   This position has been reaffirmed and elevated by the Supreme Court in “Samuel  Kamau Macharia & Another – Versus - Kenya Commercial Bank & 2 Others [2012] eKLR”, where it  was held that: -

“A court’s jurisdiction flows from the Constitution or legislation, and it  cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

18.   The Plaintiff/Respondent, through the contents made out under Paragraphs 3, 4, 5, 6, 8, 9, 10, 12, 16, 17, 20 and 22 of the Replying  Affidavit, invited this Court to determine: the legality of a grant, the legitimacy of an  administrator, entitlement to the estate and alleged intermeddling. The Learned Counsel averred that those were not land issues; they were core succession questions, falling squarely within the jurisdiction of the Succession Court. Learned Counsel deponed that this Honourable Court, as constituted under the provision of Article 162 (2)(b) of the Constitution, had no jurisdiction to determine matters of probate, administration, or beneficiary entitlement. Learned Counsel stated that any attempt to do so would have amounted to an unconstitutional usurpation of jurisdiction, rendering any such proceedings a nullity ab initio.

19.   The Learned Counsel deponed further that the doctrine of exhaustion was firmly embedded in Kenyan jurisprudence. In the case of:- “Geoffrey Muthinja Kabiru & 2 Others – Versus - Samuel Munga Henry & 1756 Others [2015] eKLR”, the Court of Appeal held:

“Courts ought to defer to specialized forums where Parliament has provided a clear mechanism for dispute resolution.” 

20.   The Learned Counsel stated that this position was emphatically endorsed by the Supreme Court in the case of:- “Communication Commission of Kenya & 5 Others – Versus - Royal Media Services Ltd & 5 Others [2014] eKLR”, where the Court underscored the importance of institutional competence and orderly dispute resolution. The Learned Counsel averred that the Law of Succession Act provided a self‑contained and exhaustive framework for revocation of grants, determination of beneficiaries, and administration of estates. Learned Counsel deponed that the Plaintiff had already invoked that jurisdiction in Kiambu Succession Cause No. 205 of 2018, where a summons for revocation of grant was actively pending. Learned Counsel stated that it was therefore legally indefensible for the Plaintiff to bypass, duplicate, or undermine that process through parallel litigation.

21.   The Plaintiff/Respondent’s conduct so far met the strict legal threshold of abuse of court process. He relied on the case of:- “Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR”, the  Court of Appeal defined abuse of process to include: Multiplicity of suits between the same  parties over the same subject matter in different courts. More recently, the Court of Appeal in the case of:  “Kenya Ports Authority – Versus - Modern Holdings (EA) Limited [2017] eKLR” reiterated that courts  must guard against misuse of judicial processes through duplicative litigation. The Plaintiff has invoked the Succession Court, challenged the grant therein, and simultaneously seeks  validation in this Court.

22.   According to the Learned Counsel this was not a coincidence it was calculated litigation strategy aimed at securing collateral advantage. Such conduct must be met with judicial firmness and outright rejection.

23.   On whether the issue of procedural illegal should be condoned.  The Learned Counsel submitted that the Plaintiff had egregiously inverted the legally prescribed sequence. The correct  procedure is clear: first, to determine ownership (where disputed) before the ELC;  thereafter, to proceed to the Succession Court for administration and transmission. Instead,  the Plaintiff: rushed to the Succession Court, procured a contested confirmed grant, and  now seeks this Court’s endorsement. This is the clearest case of putting the cart before the  horse, and represents a procedural absurdity that the law cannot countenance.

24.   The Supreme Court in the case of:-  “Speaker of the Senate & Another – Versus - Attorney General & 4 Others  [2013] eKLR” warned against circumventing constitutional and statutory procedures,  emphasizing that such shortcuts undermine the rule of law. This Honorable Court must  therefore refuse to sanitize an illegality or validate a procedurally tainted process. The Court of Appeal in the case of:- “Trouistik Union International & Another – Versus - Jane Mbeyu & Another  [1993] eKLR” emphasized that only properly clothed parties may litigate matters touching  on estates. The Plaintiff’s attempt to litigate her entitlement before this Court is therefore  premature, incompetent, and legally unsustainable. 

25.   The Learned Counsel averred that proceeding with this matter in parallel with the Succession Cause would:  create a real risk of conflicting determinations, occasion duplication of judicial effort, and  lead to institutional embarrassment. The Supreme Court in the case of:- “Kenya National Commission on  Human Rights – Versus - Attorney General; IEBC & 16 Others (Interested Parties) [2020] eKLR” stressed the need for judicial coherence and avoidance of contradictory decisions. A stay is  therefore not only discretionary indulgence at this juncture but it also is a jurisdictional  necessity.

26.   The Counsel argued that the stay was inevitable taking that the issues in the Succession Cause were foundational: validity of the Grant, identity of beneficiaries, entitlement to the estate. These issues must be resolved first,  as they directly determine the substratum of this suit. Until then, these proceedings remain:  premature, speculative and legally untenable. The Court of Appeal in the case of: “Co-operative Bank  of Kenya Ltd – Versus - Patrick Kangethe Njuguna & 5 Others [2017] eKLR” emphasized that courts  must avoid engaging in matters that are not ripe for determination.

27.   Finally, on what orders should this Honourable Court make on the question of costs. The Learned Counsel submitted that it was now settled law that the basis for an award of costs is as provided under Section 27 of the  Civil Procedure Act, Cap. 21, Laws of Kenya, namely that this is a matter regulated by  judicial discretion. It is also well known that such discretion must be exercised judicially, which means that its exercise must accommodate any statutory or related directions in  place, and any principles that may be in force, in judicial practice; and its exercise must pay  regard to the vital facts and circumstances of the particular case. [See the case of “Atsango  Chesoni – Versus - David Morton Silverstein [2009] eKLR”].

28.   In exercising its discretion, the court must be guided by the principles set out in the case of  “Atsango Chesoni – Versus -David Morton Silverstein [Supra]” as follows: -

1. the complexity of the subject which counsel had to handle; and  

2. The Conduct of the parties. The learned author in Halsbury’s Laws of England, 4th edition Reissue, vol. 10, at para. 16 outlined the consideration should apply its mind to  in analysing the conduct of the parties for purpose of determining the issue of costs as  follows:  

I. conduct before, as well as during, the proceedings and in particular the extent to  which the parties followed any relevant pre-action protocol;  

II. whether it was reasonable for a party to raise, pursue or contest a particular  allegation or issue;  

III. the matter in which a party has pursued or defended his case or a particular  allegation or issue; and  

IV. Whether a claimant who has succeeded in his claim, in whole or in part,  exaggerated his claim.  

29.   The Learned Counsel invited this Court to exercise its discretion in finding that, the issues in dispute  are not only complex and highly contentious issues but that they also transcends the four  walls of the present case. The dispute largely touched on contemporary issues when it  comes to land litigation. Further, the conduct of the Defendant had proved not to be  transparent in failure to notify the Defendants of the succession proceedings.

30.   In conclusion, the Learned Counsel submitted that the Plaintiff’s Replying Affidavit is jurisdictionally incompetent, procedurally defective and an  abuse of court process. This Honorable Court was urged to jealously guard its jurisdiction, uphold  procedural integrity, and decline to be drawn into succession disputes. In the premises, they humbly prayed for the orders sought from the application be granted. that:

B.   The Written Submissions by the Plaintiff/Respondent

31.   The Plaintiff/ Respondent through the Law firm of Messrs. Mbiriri Ngugi & Co. Advocates filed her written submissions dated 9th April, 2026. Mr. Ngugi Kariuki Advocate commenced his submission by fundamentally providing the Court with the background information pertaining to the case. first and foremost, the Counsel informed the Court that the Plaintiff/Respondent was the wife of the Deceased having been married on 9th May 1963 in a  marriage solemnised at Mangu, Kiambu. In his lifetime, the Deceased acquired the suit property. On the 18th August 1986, he obtained a Title deed for the suit property from  the Kwale District Land Registry.

32.   On 11th May 1994, the Deceased used the Title Deed for the suit  property as bond to stand surety for his brother in-law, John Bosco Kamau, who  had been charged in CR. No. 1759/94, Republic – Versus - JOHN BOSCO KAMAU in  the Senior Principal Magistrate’s Court at Nairobi. Due to unavoidable  circumstances, the Deceased never picked up the title deed after the  said criminal case ended. As fate would have it, the Deceased died, intestate,  on 18th June 1999. The Plaintiff/Respondent, being the wife, commenced succession proceedings in the Chief Magistrate’s Court at Kiambu vide Succession Cause No. 205 of 2018 in the Estate of Stephen Flavian Mwangi. On 3rd April 2019, the Grant of Letters of administration was lawfully and procedurally issued to the Plaintiff/Respondent as the duly appointed Legal Administratix of the estate. The Grant of Letters of administration was confirmed on 5th November 2020 and later amended on 8th December 2022 to correct the title number of the suit property which had been erroneously indicated. The Plaintiff/Respondent was allocated the suit property as a beneficiary of the said estate.

33.   The Plaintiff/Respondent tried to trace the original Title Deed for the Suit  Property in the Senior Principal Magistrate’s Court registry at Nairobi but she was informed that the records and the court file for C.R No. 1759/94 had since  been destroyed. She later obtained a letter from the court stating that the title deed could not be traced. The Plaintiff/Respondent decided to make an Application to the Kwale County  Land Registry for replacement of the lost Title. Before commencing the  Application for Replacement of the lost title, she made an application for official  search of the suit property to confirm that the Title for the suit Property was still  in her late husband’s name.

34.   It was upon receiving the Certificate of Official Search and the green card for the  Suit Property that the Plaintiff/Respondent was astonished to discover that the suit property  had been stolen, transferred and a Title Deed issued to the 1st Defendant/Applicant, Mbiu Waiharo on 8th May 2020 and later on, the suit  property was transferred again to a 3rd party, Zakayo Muriuki Mbogori and a  Title Deed was issued on 8th June 2021.

35.   In a bid to recover the suit property the Plaintiff/Respondent moved to court on  24th June 2024 and filed this case -  Kwale Environment and Land Court Case  Number: Elclc/E041/2024 Margaret Nduta Mwangi – Versus - Mbiu Waiharo, Zakayo  Muriuki Mbogori and Registrar of Lands – Kwale. On 17th December 2024 the  court issued the following consent orders:

a)   “THAT the status quo of the Land Parcel Kwale/Majoreni/1289 shall be maintained and the 3rd Defendant was prohibited from registering any further interests in the suit property such as sale, transfer, charge, or subdivision pending the hearing and determination of the suit.

b)   THAT there shall also be no further developments on the suit property.”

36.   It was therefore shocking that while the matter herein was still pending and he  had not filed any defence, the 1st Defendant/Applicant clandestinely rushed to  the Succession Cause and filed Summons for Revocation of Grant  dated 24th September 2025 seeking revocation of the grant solely on the  allegation that he had purchased the suit property KWALE/MAJORENI/1289  from the deceased. It was worth noting that the 1st Defendant/Applicant was not a  family member, survivor, dependant or beneficiary in the estate of the late Stephen Flavian Mwangi.

37.   According to the Learned Counsel it was in the said summons for revocation of grant that, for the first time, the 1st Defendant/Applicant attached a forged Sale Agreement dated 2nd April 1997 alleging it to  be the legal instrument that was ostensibly duly executed between the deceased and the 1st Defendant for the sale transaction of the suit land. It was the bona  fides of that alleged sale that was centre of the dispute in this suit and in the belated  summons for revocation of grant.

38.   The Learned Counsel submitted that the 1st Defendant/Applicant’s Application dated 2nd March 2026, sought for stay of  proceedings herein until the summons for revocation dated 24th September 2025 filed in the Chief Magistrate’s Court at Kiambu vide Succession Cause No. 205  of 2018 was heard and determined.  The 1st Defendant/Applicant also filed a Further Affidavit dated 24th March 2026  wherein he introduced new matters that were neither in the application or in  the Replying Affidavit. He would urge the court to disregard the said  matters. To that end, the Plaintiff/Respondent filed a simple and concise Replying Affidavit dated 18th March 2026. 

39.   On the analysis of the legal aspects, the Learned Counsel relied on the following three ( 3 ) issues for determination. Firstly, whether or not the suit herein should be stayed. The Learned Counsel called upon the Court to consider that the said application for revocation of  grant was filed in the honourable Kiambu magistrate court which court is  subordinate to this court. It follows then that it was the proceedings in that court  that should be stayed and not vice versa. Further, while the suit herein was filed on 24th June 2024 and was at all times  active, the summons for revocation of grant were as an afterthought filed on  24th September 2025 with the obvious intention to delay and derail the hearing  of this suit. In the event that both courts had jurisdiction to determine the suit, which is not the case, this suit was filed before the summons for revocation of  grant and should therefore take precedence. Additionally, and most importantly, upon a perusal of the summons for revocation  of grant, as attached to both the application and the Replying Affidavit, it revealed that the summons are grounded only on the allegation that 1st Defendant/Applicant had purchased the suit property  from the deceased; no other substantive ground. The 1st Defendant/Applicant had  belatedly attempted to make his application complex by raising many irrelevant  issues. However, it was obvious that the 1st Defendant/Applicant was not a family  member, survivor, dependant or beneficiary in the deceased. The 1st Defendant/Applicant was a third party and/or outsider to  the estate. He was not claiming that he ought to have been the administrator.

40.   Therefore, which court between this Honourable  Environment and Land Court and the chief magistrate court Kiambu has  jurisdiction to determine whether or not the deceased had  sold the suit property to the 1st Defendant/Applicant, particularly in that face of  the forged documents that had been filed by the 1st Defendant/Applicant. The Counsel averred that under the provision of Article 162 (2)(b) of the Constitution of Kenya, 2010 and  Section 13(2) of the Environment and Land Court Act, 2011, the Environment  and Land Court (ELC) has original jurisdiction over land matters primarily giving  this court power to hear and determine disputes concerning land use, tenure,  title, boundaries, and administration.

41.   To buttress on this point, the Counsel made reference to several cases. In the case by the  Supreme Court - “Samuel Kamau Macharia & another – Versus - Kenya  Commercial Bank Limited & 2 others [2012] eKLR”, stated as follows on the  jurisdiction of a court:

“A Court’s jurisdiction flows from either the Constitution or legislation or  both. Thus, a Court of law can only exercise jurisdiction as conferred by the  constitution or other written law. It cannot arrogate to itself jurisdiction  exceeding that which is conferred upon it by law. We agree with counsel for  the first and second respondents in his submission that the issue as to whether  a Court of law has jurisdiction to entertain a matter before it, is not one of  mere procedural technicality; it goes to the very heart of the matter, for  without jurisdiction, the Court cannot entertain any proceedings… Where  the Constitution exhaustively provides for the jurisdiction of a Court of law,  the Court must operate within the constitutional limits. It cannot expand its  jurisdiction through judicial craft or innovation…” (their emphasis)

42.   Similarly, in “the Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR)”, the  High Court clarified the proper forum for determination of land disputes arising  in the context of succession. The Court held that disputes between an estate and  third parties over ownership of property are to be determined outside the probate proceedings, and specifically by the court vested with jurisdiction over  land matters. The court held as follows: -

“29. Clearly, disputes as between the estate and third parties need not be  determined within the succession cause. The legal infrastructure in place  provides for resolution elsewhere, and upon a determination being made by  the civil court, the decree or order is then made available to the probate  court for implementation. In the meantime, the property in question is  removed from the distribution table. The presumption is that such disputes  arise before the distribution of the estate, or the confirmation of the grant.  Where they arise after confirmation, then they ought strictly to be  determined outside of the probate suit, for the probate court would in most  cases be functus officio so far as the property in question is concerned. The  primary mandate of the probate court is distribution of the estate and once  an order is made distributing the estate, the court’s work would be complete.  The proposition therefore is that not every dispute over property of a dead  person ought to be pushed to the probate court. The interventions by that  court are limited to what I have stated above…

As at 11th May, 2010, the High Court had jurisdiction to hear land disputes relating to use and occupation thereof and title thereto, one could properly  argue that a land suit relevant to a pending succession dispute could be heard  simultaneously by the same court. The promulgation of the Constitution of  Kenya 2010 changed the dynamics. Article 165(5) took away the jurisdiction  of the High Court with respect to determination of land disputes concerning  land use, occupation and title. Clearly, therefore the probate court has no  jurisdiction over the suit in ELC No. 121 of 2009.” (their emphasis)

43.   Additionally, in the case of “Adome – Versus - Ogutu [2024] KEHC 7682 (KLR)”, the Hight court at  Paragraph 16 provided as follows with regard to the jurisdiction of the High  Court in succession matters:

“The High Court has no jurisdiction to address issues around ownership of  property, by dint of Articles 162(2) and 165(5) of the Constitution. That  would include where issues of ownership arise in probate and administration  proceedings. It would mean that where an issue around ownership arises in  probate proceedings conducted before the High Court, the probate  proceedings before that court would not be the appropriate forum to resolve  the issues, and the same ought to be placed before the court with  jurisdiction.” (their emphasis)

44.   Also, in the case of: “Kakamega High Court Succession Cause No. 836 of 2013 In the matter of the  estate of Prisca Ong’ayo Nande (deceased)” the court held as follows regarding  similar issues:

“… Was the applicant a bona fide purchaser of property from the deceased to  warrant being treated as a creditor of the estate, who ought to be catered for  from the estate? Documents were placed on record, to demonstrate that there  were agreements of sale and that money changed hands. However, I have no  jurisdiction to make a finding one way or the other, with regard to whether the  alleged sales were valid and resulted in the applicant acquiring a stake in the  estate. That is a matter which revolves around title to land. Under Articles 162(2)  and 165(5) of the Constitution, I have no jurisdiction over that question. The  parties are better of placing the issue before another forum for determination of  the question. I shall not pronounce as to whether the applicant was a bona fide  creditor of the estate, entitled to be allocated shares in the estate, he shall have  to prove his entitlement to the property he claims he bought from the deceased  by commencing suits against the estate at the appropriate forum. 23. The  primary source of the jurisdiction of the courts is the Constitution. With respect  to matters touching on title to and, and occupation of land, the relevant  provisions are in Article 162(2) and 165(5). Article 162 of the Constitution  essentially establishes the superior courts in Kenya. It identifies them as the  Supreme Court, the Court of Appeal and the High Court and the courts  established under Article 162(2). Article 162(2) envisages the establishment of  courts to be of equal status with the High Court, to exercise jurisdiction over,  among others, occupation of and title to land. The relevant provisions says:  “Parliament shall establish courts with the status of the High Court to hear and  determine disputes relating to (a) … (b) the environment and the use and  occupation of, and title to, land.” 24. Article 165 of the Constitution sets out the  jurisdiction of the High Court. Article 165(5) is emphatic that that jurisdiction  does not cover the matters that have been isolated for the courts envisaged in  Article 162(2). Article 165(5) states as follows: “‘The High Court shall not have  jurisdiction in respect of matters (a) … (b) falling within the jurisdiction of the  courts contemplated in Article 162(2).” 25. Parliament has complied with Article  162(2)(3) of the Constitution, by passing the Environment and Land Court Act,  No. 19 of 2011, to establish the Environment and Land Court, the jurisdiction of  which 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. Section 13 states as follows: “13. Jurisdiction of the Court (1) The Court  shall have original and appellate jurisdiction to hear and determine all disputes  in accordance with Article 162(2) (b) of the Constitution and with the provisions  of this Act or any other law applicable in Kenya relating to the environment and  land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes (a) relating to  environmental planning and protection, climate issues, land use planning, title,  tenure, boundaries, rates, rents, valuations, mining, minerals and other natural  resources; (b) relating to compulsory acquisition of land; (c) relating to land  administration and management; (d) relating to public, private, and community  land and contracts, choses in action or other instruments granting any  enforceable interests in land; and (e) any other dispute relating to environment  and land.” 26. The applicant herein lays claim to Butsotso/Indangalasia/337, not  as an inheritor from the estate of the deceased herein, but by alleging that  portions of that property was sold to him by the estate. The sales are contested  by the administrator. That would mean the court has to decide a question of  ownership of the said property as between the estate and the applicant. Sale of  property is about conveyance of title from the seller to the buyer. The dispute,  therefore, is at the heart of title and ownership. Ownership or proprietorship of  a property revolves about title, and that clearly places the matter squarely under  Article 162(2) of the Constitution.

45.   Therefore, the Counsel submitted that it was a legal absurdity for the Applicant  to request this court which has jurisdiction to determine the dispute between  parties to stay its proceedings in favour of the Honourable Magistrate court which  does not have jurisdiction. To do so would be to abdicate its constitutional duty. They submitted that the court should proceed to hear and determine this matter. There is an important issue that we would like the court to take note of; At  paragraph 10 the Further Affidavit, the 1st defendant/Applicant has  disingenuously alleged that the plaintiff/respondent was divorced from the  deceased. Apart from the allegation not being supported by any evidence  whatsoever, it is made for the first time in a further affidavit; the allegation is  not made in the Summons for revocation of grant or in the Application herein.  No such issue is raised in the replying Affidavit to require a response in the further  Affidavit. They therefore invited the court to not only ignore the issue but also  discern the malice and desperation at which the 1st defendant/applicant is keen  to stall this matter.

46.   Secondly, on whether or nor the summons for revocation of grant was filed in violation of the doctrine of sub judice. The Learned Counsel contended and as already indicated above, the Plaintiff/Respondent completed the succession cause 8th December 2022. It  was thereafter that she discovered that the 1st Defendant/Applicant had stolen and sold the suit property. The  Plaintiff/Respondent filed this suit on 24th June 2024. The 1st Defendant/Respondent filed the summons for revocation of grant as an afterthought on 24th September 2025 while fully aware of the existence of this  suit. Thus, the Counsel submitted that filing of the summons for revocation of grant to determine  the issue of ownership of the suit property was filed in violation of the doctrine  of sub-judice. To support his point, the Counsel referred Court to the provision of Section 6 of the Civil Procedure Act, Cap. 21.

47.   In the case of “Republic – Versus - Paul Kihara Kariuki, AG & 2 Others Ex parte Law Society  of Kenya [2020] eKLR”, the High Court stated as follows on the rule of sub-judice:

“The sub judice rule like other maxims of law has a salutary purpose. The  basic purpose and the underlying object of sub judice is to prevent the courts  of concurrent jurisdiction from simultaneously entertaining and adjudicating  upon two parallel litigations in respect of same cause of action, same subject  matter and the same relief. This is to pin down the parties to one litigation  so as to avoid the possibility of contradictory verdicts by two courts in respect  of the same relief and is aimed to prevent multiplicity of proceedings. In a  fairly recent decision of this court, namely JR No. 146 of 2020, which  incidentally involved the Law Society of Kenya, I stated that the words  “directly and substantially in issue” are used in contradistinction to the words  “incidentally or collaterally in issue.” Therefore, sub judice would apply only  if there is identity of the matter in issue in both the suits, meaning thereby,  that the whole of the subject- matter in both the proceedings is identical.  Paraphrasing what I said in the above case, the key words in applying sub  judice rule are that “the matter in issue is directly and substantially in issue in  the previously instituted suit.” The test for applicability of the sub judice rule  is whether on a final decision being reached in the previously instituted suit,  such decision would operate as res-judicata in the subsequent suit…However,  when the matter in controversy is the same, it is immaterial what further  relief is claimed in the subsequent suit or suits.” (their emphasis)

48.   Further, the Learned Counsel submitted that it was evident that the Summons for Revocation of Grant dated  24th September 2025 was a calculated and belated attempt to circumvent and  undermine proceedings already properly before this Honourable Court. The  parties, the subject matter, and the questions for determination are directly and substantially the same. The Applicant’s recourse to the probate court, with full  knowledge of these proceedings, was therefore a clear affront to the doctrine of  res sub judice, and an impermissible attempt to invite two courts to pronounce  themselves on the same dispute thereby undermining the integrity of the judicial  process.

49.   Summons for revocation of grant that were sub judice ab initio cannot form  basis for stay of proceedings that are properly before this court. Therefore, the Counsel invited this Honourable Court to reject the 1st Defendant’s Application in its  entirety and affirm the primacy of these proceedings.

50.   Finally, on who should bear the costs of the application. It was the submission by the Learned Counsel that they had demonstrated above that the Applicant’s application lacked merit, was frivolous, vexatious, bad in law and an abuse of the process of this court, made  with the intention to delay and derail the hearing of the substantive suit. The  Plaintiff/Respondent prayed that the Application be dismissed with costs to the  Plaintiff/Respondent since costs follow event. The 1st Defendant/Applicant should  be ordered to pay the costs of this application promptly.

51.   In conclusion, the Learned Counsel submitted that the Application herein was an outright abuse of the process of the Court and ought to be dismissed.

VI.   Analysis and Determination

52.   I have considered the Notice of Motion dated 2nd March 2026 by the 1st Defendant/Applicant, the Replying Affidavit sworn by the Plaintiff/Respondent, and the written submissions filed by both parties and the myriad of cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and Statures whatsoever. From the pleadings and arguments placed before this Honourable Court, and in order to reach an informed, reasonable and Equitable decision, it has condensed the subject matter for its determination into the following five (5) issues. These are:- 

a)   Whether the Summons for Revocation of Grant filed in Kiambu Succession Cause No. 205 of 2018 can lawfully form the basis for stay of proceedings (based on the Doctrine of “Sub – Judice”) in this Environment and Land Court matter.

b)   Whether the Environment and Land Court has jurisdiction to determine ownership of the suit property Kwale/Majoremi/1289 notwithstanding the pendency of succession proceedings.

c)   Whether the Plaintiff/Respondent’s claim to the suit property, founded on transmission under a confirmed grant, is properly justiciable before this Court or exclusively within the Succession Court.

d)   Whether the prejudice alleged by the 1st Defendant/Applicant in proceeding with the hearing outweighs the prejudice that would be occasioned to the Plaintiff/Respondent if the hearing of her claim is stayed.

e)   What orders should issue as to costs of the Notice of Motion application dated 2nd March, 2026.

ISSUE No. a).         Whether the Summons for Revocation of Grant filed in Kiambu Succession Cause No. 205 of 2018 can lawfully form the basis for stay of proceedings (based on the Doctrine of “Sub – Judice”) in this Environment and Land Court matter

53.   Under this sub‑heading the Honourable Court will decipher whether the pendency of the summons for revocation of grant in Kiambu Succession Cause No. 205 of 2018 could lawfully justify a stay of proceedings in the present Environment and Land Court matter.

54.   Legally speaking, in Kenya, a stay of proceedings is a discretionary remedy granted by courts to halt ongoing legal actions, typically pending the outcome of an appeal or a related matter, guided by principles established in key case laws such as “Giella – Versus - Cassman Brown & Co. Limited [1973] EA 358”. Courts generally apply the principles from “Giella – Versus - Cassman Brown (Supra)” the applicant must show a prima facie case with a probability of success, the application is likely to cause irreparable loss if not granted, and if in doubt, the court decides on a balance of convenience.

55.   Under this Sub heading, the Court shall examine to understand the serious nature of an order of stay of proceedings. The provision of Section 6 of the Civil Procedure Act, Cap. 21 provides for stay of suits. It is worded thus: -

“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

Explanation. —The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.

56.   The above section is a bar to parallel prosecution of cases in two fora of equal jurisdiction. Halsbury’s Law of England, 4th Edition. Vol. 37 pages 330 and 332, sheds light on stay of proceedings and states 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 proceeding beyond all 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…”

57.   As already elaborately submitted by the Learned Counsel for the Plaintiff/Respondent herein, the provision of Article 162 (2)(b) of the Constitution of Kenya, 2010 establishes the Environment and Land Court with jurisdiction limited to disputes relating to the environment and the use, occupation, and title to land. Matters of succession, probate, and administration of estates fall within the exclusive jurisdiction of the High Court (Family Division) and sub - ordinate courts designated under the Law of Succession Act, Cap. 160.

58.   On the other hand, the provision of Section 47 of the Law of Succession Act, Cap. 160 vests jurisdiction in succession matters in the High Court, with sub - ordinate courts exercising limited jurisdiction as conferred. Further to this,  Rule 73 of the Probate and Administration Rules preserves the inherent power of the Succession Court to make orders necessary for the ends of justice in succession proceedings.

59.   Thus, while the Environment and Land Court may interrogate questions of the Use, Occupation, Ownership and title of land, it cannot assume jurisdiction over revocation or confirmation of Grants, which are solely succession matters. In saying so, I am guided by the case of “Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR”, the High Court emphasized that disputes relating to revocation of grants and entitlement of beneficiaries must be determined within the Succession Court, not parallel forums. The Court of Appeal in “Geoffrey Muthinja Kabiru & 2 Others – Versus - Samuel Munga Henry & 1756 Others [2015] eKLR” underscored the doctrine of exhaustion, holding that courts ought to defer to specialized forums where Parliament has provided a clear mechanism for dispute resolution.

60.   In the case of “Kenya Wildlife Service – Versus - James Mutembei (2019) eKLR”, Gikonyo J held that:

“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent”.

61.   Further, in the persuasive authority in “Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000” Ringera J, (as he then was) stated that: -

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind 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”.

62.   In the “Kenya Wildlife Case (Supra)”, Gikonyo J quoted Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:

“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 proceeding beyond all 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.”

It 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 the case”.

63.   I am persuaded by the above authorities which lay down the clear principles that stay of proceedings is a grave matter to be entertained only in the most deserving cases as it impacts the right to expeditious trial.  It is a discretionary power exercisable by the court upon consideration of the facts and circumstances of each case.  As stated by the Court of Appeal in the case of “David Morton Silverstein – Versus - Atsango Chesoni (2002) eKLR”: -

“The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the Court's own rules.”

64.   Regardless of which orders were feasible, due regard must be given to time in order to avoid delaying this matter any further. In the case of “Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Ltd & 2 Others (2009) eKLR”, the Court of Appeal stated that:

“Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice.”

65.   It is acknowledged that the order of stay of proceedings is a drastic order and needs to be given only in exceptional circumstances. This is because it restricts the right of a party to be heard. When I weigh the pros and cons of either proceeding with the matter, which already has a hearing date, or staying the proceedings, it is my view that it is more expeditious to proceed with the case rather than to stay it

66.   Further I have opined myself (Naikuni J), in the case of:-  “Sheria Na Haki Human Rights Institute – Versus -  Noor & 10 Others; Ethics and Anti-Corruption Commission & another (Interested Parties) [2024] KEELC 4519 (KLR)”, that jurisdiction is everything, and where a matter falls outside its constitutional mandate, the Court must down its tools but that is not the case in this instant suit.

67.   The summons for revocation of grant in Kiambu Succession Cause No. 205 of 2018 squarely raises succession issues: the validity of the grant, entitlement of beneficiaries, and administration of the estate of the deceased. These are matters reserved for the Succession Court under the Law of Succession Act.

68.   The Environment and Land Court, on the other hand, is seized of a dispute concerning ownership and title to Kwale/Majoreni/1289. While ownership may be contested, the question of whether the grant was properly issued or should be revoked is not within this Court’s jurisdiction. To stay proceedings here solely on account of a pending revocation summons would amount to an abdication of the Court’s constitutional mandate under Article 162(2)(b).

69.   The granting of an order for stay of proceedings is purely a matter of judicial discretion. The principles surrounding the granting of an order for stay of proceedings were aptly discussed by the court in the case of “William Kamunge & 2 others – Versus - Muriuki Mbithi [2016] eKLR” inter alia as follows:

“…it should bear in mind 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”

70.   Being of that orientation, when I place all these matters on scale, the preponderant weight tilts towards refusing the request for stay of proceedings. The answer to “…. the sole question… whether it is in the interest of justice to order a stay of proceedings’’ is; it will not be in the interest of justice to stay proceedings.

71.   Furthermore the doctrine of exhaustion requires parties to pursue remedies in the specialized forum provided by law. The Plaintiff has already invoked the Succession Court’s jurisdiction in Kiambu. It would therefore be legally indefensible to duplicate or undermine that process through parallel litigation. However, the pendency of the revocation summons cannot, in itself, oust the jurisdiction of this Court to determine ownership and title questions, unless the issues are so intertwined that proceeding would prejudice or embarrass the judicial process.

72.   The Honourable Court finds that while the summons for revocation of grant in Kiambu Succession Cause No. 205 of 2018 is a valid and active process within the Succession Court, it cannot lawfully form the sole basis for staying proceedings in this Environment and Land Court matter. The two courts exercise distinct jurisdictional mandates. The proper course is for each court to confine itself to its constitutional and statutory remit, with the Succession Court determining the validity of the grant and the Environment and Land Court addressing the Use, Occupation, Ownership and title to the suit property. To me “the Doctrine of Sub – Judice” has not been contravened nor apply herein. Thus, on this stand alone aspect, the application must fail.

ISSUE No. b).         Whether the Environment and Land Court has jurisdiction to determine ownership of the suit property Kwale/Majoremi/1289 notwithstanding the pendency of succession proceedings.

73.   Under this sub‑heading the Honourable Court will decipher whether the pendency of the Succession proceedings in Kiambu Succession Cause No. 205 of 2018 ousts or limits the jurisdiction of this Court to determine ownership of the suit property.

74.   I would like to begin by quoting the Supreme Court decision in the case of “R – Versus - Karisa Chengo & 2 others (2017) eKLR”  where the Supreme Court stated as follows at paragraph 51 of its decision:-

“…In this instance, the jurisdiction of the specialized courts is prescribed by parliament, through the said enactment of legislation relating, respectively, to the ELC and ELRC.”

75.   It is in fact worthwhile setting down the provisions of the whole of the provision of Article 162 of the Constitution so that one can see the context of the jurisdiction of the ELC. The said provision is drawn as follows :-

162. System of courts

(1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2).

(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—

(a) employment and labour relations; and

(b) the environment and the use and occupation of, and title to, land.

(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).

(4) The subordinate courts are the courts established under Article 169, or by Parliament in accordance with that Article.

76.   It will be seen from the provision Article 162 (3) that it was left for Parliament to determine the jurisdiction of the courts created under Article 162 (2). In elaborating the jurisdiction of the ELC, Parliament did enact the Environment and Land Court Act, No. 19 of 2011 and various other statutes which provide for instances where the ELC has jurisdiction.

77.   The provision of Section 13 of the Environment and Land Court Act, does provide as follows in so far as jurisdiction is concerned :-

13. Jurisdiction of the Court

(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—

(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(b) relating to compulsory acquisition of land;

(c) relating to land administration and management;

(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and

(e) any other dispute relating to environment and land.

(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.

(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

(5) Deleted by Act No. 12 of 2012, Sch.

(6) Deleted by Act No. 12 of 2012, Sch.

(7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including—

(a) interim or permanent preservation orders including injunctions;

(b) prerogative orders;

(c) award of damages;

(d) compensation;

(e) specific performance;

(g) restitution;

(h) declaration; or

(i) costs. [Act No. 12 of 2012, Sch.]

78.   Further, according to the provision of Section 150 of the Land Act, No. 6 of 2012, it provides as follows :-

The Environment and Land Court established in the Environment and Land Court Act and the sub - ordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.

79.   Similarly, the provision of Section 101 of the Land Registration Act, No. 3 of 2012, provides as follows:-

101. Jurisdiction of court

The Environment and Land Court established by the Environment and Land Court Act, 2011 (No. 19 of 2011) and subordinate courts have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.

80.   On the aspect of the legal supervision of the Sub – ordinate Courts which includes where the Succession cause was pending hearing a determination by the High Court, the provision of Article 165 ( 6 ) of the Constitution is graphically clear. It holds as follows:-

The High Court has supervisory jurisdiction over the Sub – Ordinate Courts and over any person, body or authority exercising a judicial or quasi judicial function, but not over a superior Court”  

81.   Thus, it will be seen from the above legal citations that it is the ELC and the empowered sub - ordinate courts, which have jurisdiction to hear disputes relating to matters in the Land Act and Land Registration Act. This jurisdiction will inevitably cover all instruments created within these statutes. In such instance one needs to find out what the predominant issue in the case is, and file suit in the court which has jurisdiction to hear the predominant issue. I am aware of the decision of my brother, Ngugi J, in the case of “Suzanne Achieng Butler & 4 Others – Versus -  Redhill Heights Investments Limited & Another (2016) eKLR”, where the Learned Judge, when faced with an objection to jurisdiction, was of the view that what is important in determining which court would have jurisdiction, is “the pre-dominant purpose test”, which the Judge elaborated as follows:

“23. When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.

24. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.”

82.   Conversely, the provision of Section 47 of the Law of Succession Act (Cap 160) vests jurisdiction in succession matters in the High Court, with sub - ordinate courts exercising limited jurisdiction as conferred. Undisputedly, matters of probate, administration, and revocation of grants fall squarely within the Succession Court.

83.   In the case of:- “Re Estate of M’Ngarithi M’Miriti (Deceased) [supra]”, the High Court held that disputes relating to revocation of grants and entitlement of beneficiaries must be determined within the Succession Court, but questions of ownership and title to land may properly be ventilated before the Environment and Land Court.

84.   Further the Court of Appeal in “Samuel Kamau Macharia – Versus -  Kenya Commercial Bank Ltd & 2 Others [2012] eKLR” emphasized that jurisdiction flows from the Constitution or statute, and a court cannot arrogate itself jurisdiction beyond what is conferred.

85.   The Plaintiff/Respondent’s claim to the suit property is founded on transmission under a confirmed grant issued in Kiambu Succession Cause No. 205 of 2018. The 1st Defendant/Applicant contests ownership by alleging purchase from the deceased, supported by a disputed sale agreement terms and conditions stipulated thereof. From the attached documents in the filed pleadings, I have observed that the summons for revocation of grant in Kiambu raises succession issues—validity of the grant, entitlement of beneficiaries, and administration of the estate. Those questions are reserved for the Succession Court under the Law of Succession Act.

86.   However, the Environment and Land Court is constitutionally mandated to determine disputes relating to ownership and title to land. Where allegations of fraud, forgery, or illegal transfers are raised, this Court cannot abdicate its jurisdiction merely because succession proceedings are pending. To do so would deny parties a forum competent to adjudicate title disputes.

87.   The proper approach is for each court to confine itself to its jurisdictional remit: the Succession Court to determine the validity of the grant and entitlement of beneficiaries, and the Environment and Land Court to determine ownership and title to the suit property. The pendency of succession proceedings does not oust this Court’s jurisdiction, though the Court must exercise caution to avoid conflicting findings.

88.   In a nutshell, I hold that the Honourable Court finds that it has jurisdiction under the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act to determine ownership of the suit property Kwale/Majoremi/1289, notwithstanding the pendency of succession proceedings in Kiambu. The succession cause will address probate and administration, while this Court will address ownership and title. Therefore, the application cannot succeed.

ISSUE No. c).         Whether the Plaintiff/Respondent’s claim to the suit property, founded on transmission under a confirmed grant, is properly justiciable before this Court or exclusively within the Succession Court.

89.   Under this sub‑heading the Honourable Court will decipher whether the Plaintiff/Respondent’s claim to Kwale/Majoremi/1289, founded on transmission under a confirmed grant issued in Kiambu Succession Cause No. 205 of 2018, is properly justiciable before the Environment and Land Court or falls exclusively within the jurisdiction of the Succession Court.

90.   I reiterate that the provision of Article 162(2)(b) of the Constitution of Kenya, 2010, establishes the Environment and Land Court with jurisdiction to hear and determine disputes relating to the environment and the use, occupation, and title to land. As already indicated, the provision of Section 13(2) of the Environment and Land Court Act, 2011, confers jurisdiction on the Court to determine disputes relating to title, tenure, boundaries, ownership, and land use.

91.   Further, the provision of Section 47 of the Law of Succession Act (Cap 160) vests jurisdiction in succession matters in the High Court, with subordinate courts exercising limited jurisdiction as conferred. The provision of Section 71 of the Law of Succession Act provides for confirmation of grants and transmission of estate property to beneficiaries while Rule 41(3) of the Probate and Administration Rules allows succession courts to refer contested questions of ownership to the Environment and Land Court for determination. 

92.   Having said as much in the case of “Re Estate of M’Ngarithi M’Miriti (Deceased) [Supra]”, the Court held that succession courts determine entitlement and administration of estates, but disputes over ownership and title to land fall within the jurisdiction of the Environment and Land Court. 

93.   Further in the case of “Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR” the High Court clarified that transmission of property under a confirmed grant does not immunize ownership disputes from being challenged before the Environment and Land Court, especially where fraud or competing claims are alleged.

94.   The Plaintiff/Respondent’s claim to the suit property is founded on transmission under a confirmed grant issued in Kiambu Succession Cause No. 205 of 2018. That grant is contested through a pending summons for revocation. The question before this Court is not whether the grant was validly issued or whether the Plaintiff is a lawful beneficiary—those are succession issues reserved for the Succession Court under Section 47 and Section 71 of the Law of Succession Act.

95.   The Environment and Land Court, however, is constitutionally mandated under Article 162(2)(b) and Section 13 of the ELC Act to determine disputes relating to ownership and title to land. Where transmission under a grant is challenged on grounds of fraud, illegality, or competing claims, this Court is the proper forum to interrogate ownership.

96.   The Succession Court cannot conclusively determine the Use, Occupation, Ownership of property where title is disputed; its role is limited to administration and distribution of the estate. To hold otherwise would amount to an unconstitutional usurpation of jurisdiction. The doctrine of separation of jurisdiction, reinforced by the principle of exhaustion, requires that succession courts handle probate and administration while land courts determine ownership.

97.   Moreover, jurisprudence has consistently emphasized that the Environment and Land Court is the ultimate arbiter of title disputes. In “Re Estate of Alice Mumbua Mutua (Deceased) (Supra)”, the Court warned against conflating succession entitlements with ownership rights, noting that transmission under a grant does not extinguish competing claims to land. Similarly, in “Sheria Na Haki Human Rights Institute – Versus - Noor & 10 Others (Supra)”, the Court reaffirmed that jurisdictional boundaries must be respected to preserve institutional competence and avoid conflicting outcomes.

98.   Based on the foregoing, the Honourable Court finds that the Plaintiff/Respondent’s claim to the suit property, though founded on transmission under a confirmed grant, is properly justiciable before this Court. The Succession Court will determine the validity of the grant and entitlement of beneficiaries, but this Court retains jurisdiction to determine ownership and title to Kwale/Majoremi/1289.

ISSUE No.         d). Whether the prejudice alleged by the 1st Defendant/Applicant in proceeding with the hearing outweighs the prejudice that would be occasioned to the Plaintiff/Respondent if the hearing of her claim is stayed.

99.   Under this sub ‑ heading the Honourable Court will decipher whether the balance of prejudice favours granting a stay of proceedings or allowing the Plaintiff/Respondent’s claim to proceed.

100.   I associate myself with and seek refuge from the provision of Sections 3 of the Environment & lLnd Act, No. 19 of 2011 and Sections 1A and 1B of the Civil Procedure Act Cap. 21 which enshrines the Overriding Objective (“The Oxygen Rule”) of civil litigation, requiring courts to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Under the provision of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, provides that stay of proceedings may only be granted upon fulfilment of the three ( 3 ) pre – conditional ingredients. These are where substantial loss may result to the applicant, the application is made without unreasonable delay, and security is provided where appropriate.

101.   Further under the provision of Article 159(2)(b) of the Constitution of Kenya, 2010, there is a constitutional mandate that justice shall not be delayed, underscoring the need to avoid unnecessary adjournments or stays that prejudice litigants. 

102.   The 1st Defendant/Applicant as extensively contended that proceeding with the hearing of the Plaintiff/Respondent’s claim would prejudice him by exposing him to conflicting determinations between this Court and the Succession Court, and by undermining the revocation proceedings already filed in Kiambu. He argues that judicial economy and consistency favour a stay.

103.   On the other hand, the Plaintiff/Respondent asserts that staying her claim would occasion undue prejudice by delaying her right to have ownership of Kwale/Majoremi/1289 determined. She relies on transmission under a confirmed grant and seeks to enforce her proprietary rights. A stay would effectively suspend her ability to vindicate those rights, contrary to the provision of Article 159(2)(b) of the Constitution which requires that justice shall not be delayed.

104.   While the Defendant/Applicant fears conflicting and perhaps embarrassing outcomes, that risk and/or mischief can be mitigated by each court confining itself to its jurisdiction: the Succession Court to entitlement and administration, and this Court to ownership and title. The Plaintiff/Respondent, however, faces direct prejudice in being denied timely adjudication of her claim.

105.   By and large, therefore, the Honourable Court finds that the prejudice alleged by the 1st Defendant/Applicant does not outweigh the prejudice that would be occasioned to the Plaintiff/Respondent if the hearing of her claim is stayed. The balance of justice favours allowing the Plaintiff/Respondent’s claim to proceed, subject to the Court’s vigilance in ensuring that its determination does not trespass into matters reserved for the Succession Court.

ISSUE No. e).          What orders should issue as to costs of the Notice of Motion application dated 2nd March, 2026.

106.   It is now well established that the issue of costs is a discretion of the Court. Costs mean the award that is granted to a party at the conclusion of any legal action or proceeding in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus -  Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.

107.   In the instant case, the 1st Defendant/Applicant sought stay of proceedings pending the determination of the summons for revocation of grant in Kiambu Succession Cause No. 205 of 2018. The Court has found that the summons for revocation cannot lawfully form the sole basis for stay, and that the Plaintiff/Respondent’s claim is properly justiciable before this Court.

108.   In these circumstances, the 1st Defendant/Applicant has not succeeded in his application. Applying the provision of  Section 27(1) of the Civil Procedure Act costs should ordinarily follow the event. The Plaintiff/Respondent has been compelled to defend the application and should be compensated for the expense incurred.

109.   There is no exceptional circumstance warranting departure from the general rule. The application was misconceived and has occasioned unnecessary delay in the expeditious disposal of the matter.

110.   Hence, the Honourable Court orders that the Notice of Motion application dated 2nd March, 2026 be dismissed with costs to the Plaintiff/Respondent.

VII.   Conclusion and Disposition.

111.   Ultimately, in view of the foregoing detailed and expansive analysis of the Notice of Motion dated 2nd March, 2026, the Replying Affidavit sworn by the Plaintiff/Respondent, and the written submissions filed herein, the Honourable Court arrives at the following decision and makes the specific orders below:-

a.   THAT the Notice of Motion application dated 2nd March, 2026 filed by the 1st Defendant/Applicant seeking stay of proceedings pending the hearing and determination of the summons for revocation of grant in Kiambu Succession Cause No. 205 of 2018 is found to be without merit and is hereby dismissed.

b.   THAT the Honourable Court holds that the Summons for Revocation of Grant in Kiambu Succession Cause No. 205 of 2018 raises succession issues properly within the jurisdiction of the Succession Court, but does not oust the jurisdiction of this Court under the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act to determine ownership and title to the suit property Kwale/Majoremi/1289.

c.   THAT the Honourable Court further finds that the prejudice alleged by the 1st Defendant/Applicant does not outweigh the prejudice that would be occasioned to the Plaintiff/Respondent if the hearing of her claim is stayed. The balance of justice favours allowing the Plaintiff’s claim to proceed.

d.   THAT the scheduled hearing of this suit shall proceed on the 15th April, 2026 unless stated otherwise.

e.   THAT apart from the Plaintiff who has leave to file and serve the Document by the Forensic Document Examiner by close of business todate, no party should file any further documents whatsoever.   

f.   THAT the costs of the Notice of Motion application dated 2nd March, 2026 shall be borne by the 1st Defendant/Applicant.  

IT IS SO ORDERED ACCORDINGLY.

 RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……14TH ……DAY OF ………APRIL……..……..2026.

Ruling delivered in the presence of:

(a)   Mr. Daniel Disi, the Court Assistant.

(b)   M/s. Wanjira Advocate holding brief for Mr. Ngugi Kariuki Advocate for the Plaintiff/Respondent.

(c)   Mr. King’ang’i Advocates for the 1st Defendant.

(d)   M/s. Washalla Advocate holding brief for Mr. Mungai Kamau Advocate for the 2nd Defendant.

(e)   M/s. Kiti Advocate for the 3rd Defendant.

(f)   Mr. Adede Advocate for the 4th Defendant.