Introduction
1. In the Notice of Motion application dated and filed on 9th July 2026, the Applicant herein sought that this court do stay proceedings in Ngong Chief Magistrate’s Court Case No. MCELC E002 of 2024 pending hearing and determination of this application and the hearing and determination of this case. He also sought that costs be in the cause.
2. The Applicant swore an affidavit in support of the said application on 9th July 2026 where he averred that the Respondent during the pendency of this suit transferred one of the suit properties, L.R No. Ngong/Ngong/62295 (hereinafter referred to as the suit property) to her sister which necessitated him to file Ngong MCELC E002 of 2024.
3. He further averred that when the said matter came up for hearing on 19th March 2026, the learned magistrate after hearing the evidence of the Plaintiff opined that the High Court ought to hear the matrimonial cause first as it found that the issue was whether the suit property was a matrimonial property and on its recovery and the learned magistrate thus deferred the proceeding of the case to 14th May 2026.
4. He stated that on 14th May 2026, the learned magistrate deferred the matter to 2nd July 2026. He further stated that the instant suit came before this court on 22nd June 2026 whereby they informed this court of the sentiments by the lower court and this court gave direction on the manner of disposal of the instant suit.
5. He claimed that when the lower court matter was mentioned on 2nd July 2026, the learned magistrate indicated that this court ought to have made clear orders directing stay of proceedings in the lower court matter and, in absence of such orders, the learned magistrate ordered the lower court matter to proceed for hearing on 20th August 2026.
6. He was therefore emphatic that it was necessary for the orders sought be allowed.
7. In opposing the application, the Respondent filed a replying affidavit dated 15th July 2026 and she averred that the lower court matter, Ngong MCELC E002 of 2024 was a land case concerning the title to and ownership of the suit property. She pointed out that the lower court matter being a land case, this court had no jurisdiction to issue orders sought by the Applicant.
8. Parties were ordered to file written submissions. The Applicant filed written submissions dated 28th July 2026. The Respondent’s submissions were also dated and filed on 28th July 2026. The Ruling herein is based on parties’ written submissions which both parties relied upon in their entirety.
ANALYSIS
9. The Applicant claimed that the Respondent was his wife but their marriage was dissolved on 29th September 2020 vide Ngong Divorce Cause 17 of 2020. He further claimed that the suit properties were acquired during the marriage hence, they were matrimonial properties and that is why he filed the instant case seeking a declaration that they were matrimonial properties.
10. He stated that he was served with pleadings by Respondent’s sister seeking his eviction from the suit property since the said sister had bought the land. He asserted that a ruling was delivered by Hon A.N. Makau who stated that the suit property was a matrimonial property and a suit had been filed to determine the same. He submitted that he realised that the suit property herein had been transferred to the Respondent’s sister and a different financier had been used. This necessitated the filing of the lower court matter that is subject to this ruling, seeking cancellation of the transfer.
11. With regards to jurisdiction of this court, he cited Owners of Motor Vessel Lillians (sic) vs Caltex Oil (K) Ltd [1989] Eklr, where the court emphasised on jurisdiction and stated that jurisdiction must be acquired before a judgment could be given. He also cited Samuel Macharia & Anor vs Kenya Commercial Bank Ltd & 2 others [2012] eKLR, where the Supreme Court held that a court could only exercise jurisdiction as conferred by the constitution or statute and without jurisdiction, a court could not entertain proceedings.
12. He invoked Sections 6 and 7 of the Matrimonial Property Act and stated that Section 6(c) of the said Act gave the necessary jurisdiction and he cited FHJ vs EAR Civil appeal No. 108 of 2019, and he claimed that the court in the said case held that the high court had jurisdiction with respect to matrimonial property. He also placed reliance on Jane Nenjala Sasita vs William Wanyinyi Sasita & Anor ELC Case No. 114 of 2019 (sic), to emphasis on jurisdiction. He was emphatic that this court had requisite jurisdiction to entertain the matter.
13. The Respondent on her part maintained that the reliefs sought in the lower court related to title to land which was regulated by Land Registration Act and the Land Act. She also pointed out that the parties in the lower court matter were different from parties in this suit therefore, this court lacked the requisite jurisdiction and she placed reliance on Owners of the Motor Vessel Lillian S vs Caltex (supra).
14. She invoked Article 162(2)(b), Article 165(5)(b) of the Constitution and Section 13 of the Environment and Land Court Act and asserted that while this court may exercise jurisdiction in the matrimonial property cause, it could not issue orders interfering with proceedings pending before a court exercising jurisdiction under the Environment and Land Court Act and affect parties who had not been given an opportunity to be heard in the application. She was emphatic that the existence of matrimonial proceedings did not confer upon this court jurisdiction to stay or control matters pending before a court exercising jurisdiction under the ELC Act and Section 9 of the Magistrate’s Court Act.
15. She referred this court to the holding in Co-operative Bank of Kenya Limited vs Patrick Kang’ethe Njuguna & 5 others [2017] eKLR where the court held that where a dispute was within the mandate of ELC court, it was only that court which had jurisdiction to hear the matter.
16. Notably, the Respondent raised a jurisdictional issue which this court thought it prudent to determine it first since jurisdiction is at the core of exercise of power by a court. Where there is no jurisdiction, the court cannot exercise power without violating the principles of rule of law and legality. The Court of Appeal in in Owners of the Motor Vessel “Lillian S” vs. Caltex (supra) stated:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
17. The Applicant herein filed a plaint in the lower court which sought for the following orders: -
i. An order of injunction restraining the Defendants and/or their agents and/or servants and/or anybody claiming through or under them from interfering with the Plaintiff's exclusive, quiet enjoyment and/or occupation and use of the suit property namely L.R. NO. Ngong/Ngong/62295.
ii. A declaration that the transfer of the suit land into the name of the 2nd Defendant and the lodgement of a charge in favour of the 3rd Defendant were and still are null and void ab initio.
iii. An order do issue directing the Land Registrar within whose jurisdiction the suit property namely L.R. Ngong/Ngong/62295 is situated and registered to cancel the transfer of the suit property from the 1st Defendant to the 2nd Defendant and cancel the charge in favour of the 3rd Defendant which was registered on the 9th day of August 2023.
iv. That an order do issue directing that no further dealings with respect to the suit land shall be entertained by the relevant Lands Registry and/or Land Registrar pending the hearing and determination of Kajiado High Court E006 of 2022
v. Costs of this suit.
18. Clearly, the Applicant was seeking for non-interference with his exclusive, quite enjoyment, occupation and use of the suit property, that the transfer to 3rd Defendant and subsequent charge was null and void and cancellation of the transfer by the land registrar.
19. Article 165(5) of the Constitution provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2). Article 162(2) of the Constitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and use and occupation of, and title to land. Article 162(3) provides that Parliament shall determine the jurisdiction and functions of the Courts contemplated in Article 162(2). It was on the basis of this provision that Parliament enacted the Environment and Land Court Act. The object of the Act is stated as follows: -
“An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to land, and to make provision for its jurisdiction, functions and powers, and for connected purposes
20. Environment and Land Court Act Section 13, the Act provides that: -
(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.
(5) 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;
(f) restitution;
(g) declaration; or
(h) costs.”
21. Subsequent to the above section, our courts have identified the correct approach in determining the appropriate court to hear land related matters by inquiring what the most substantial question or issue presented in the controversy is. The court in Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR, held that;
“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. 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. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue.”
22. In the matter before the lower court, the dispute related to transfer of the suit property to the 2nd Defendant therein and subsequent charge to the 3rd Defendant. However, the Applicant, being the Plaintiff in the lower court matter also claimed that the suit property was a matrimonial property and cited the 1st and 2nd Defendants for fraud for entering into a sale agreement when they knew that the suit property was acquired during the pendency of marriage.
23. As to whether this court has jurisdiction to stay the lower court matter, the Applicant referred this court to the case of FHJ vs EAR [2025] KECA 596 (KLR), where in the opinion of this court, the matter was different to the issues before the lower court since the dispute in the said matter related to ownership of the suit property between a couple who had divorced unlike the matter in the lower court where the dispute is on sale and transfer and charging of the suit property to 3rd parties.
24. He also referred this court to the case of Sasita vs Sasita & another [2026] KEELC 1636 (KLR), cited by Applicant as Jane Nenjala Sasita vs William Wanyinyi Sasita & Anor ELC Case No. 114 of 2019 (sic) whereby the claim related to the plaintiff’s contribution to the acquisition of the suit property, whether the same constituted matrimonial property and whether spousal consent was necessary before sale.
25. My view is that what was before the lower court was not on division of matrimonial property but on quite occupation, sale, transfer and subsequent charging of the suit property claimed to be matrimonial property. The issue as to parties’ right regarding matrimonial property and whether the suit property was matrimonial property is a life issue before this court. Notably, the suit before the lower court was filed as MCELC E002 of 2024 thus invoking the Magistrates Court ELC jurisdiction. The prayers also sought as seen earlier were also predominantly on occupation and disposition of the suit land which in my view lies with the ELC court. This court is yet to make a determination as to whether the suit property was a matrimonial property or not as sought in the originating Summons dated 18th November 2022 before this court and, therefore, this court cannot make orders relating to land which it has not determined whether it was matrimonial property or not.
26. Having said so, it is my humble opinion that this court has no jurisdiction to stay the proceedings in Ngong Chief Magistrate’s Court Case No. MCELC E002 of 2024.It is trite law that grant of an order of stay of proceedings is discretionary. F. Gikonyo while expressing on the seriousness of an order for stay of proceedings in Saham Assurance Compnay Limited v Lameck Okari Mairura [2021] eKLR, quoted the passage in 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.” ……
27. The Learned judge further quoted Ringera J (as he then was) in Daniel Walter Rasugu Nbi Hccc No 15 of 2006; Global Tours & Travel Limited; Nairobi HC Winding Up Cause No.43 of 2000, where the judge set some considerations to be considered as follows: -
“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 in deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. It will also consider such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”
28. The Learned judge concluded by stating that;
“Be that as it may, the greater constitutional concern in an application for stay of proceedings is for the court to zealously guard against impediment of the right to fair hearing, access to justice and the need for expeditious disposal of cases. Therefore, the test for stay of proceedings is quite stringent for it interferes with a person’s right to litigate his grievances in court expeditiously and without unnecessary interruption. Thus, although the decision by Ringera J (as he then was) was determined before the Constitution of Kenya, 2010, the statement that ‘’….the sole question is whether it is in the interest of justice to order a stay of proceedings’’ is an indication that right to litigate a suit before a court of law should not be interrupted easily except in the interest of justice.”
Final orders.
29. Therefore, the test is whether it will be in the interest of justice to order stay of the proceedings before the lower court or not. It is my finding that I should let the Lower Court proceed with the case before it.I dismiss the Application dated 9th July 2026; costs will be in the cause.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 31st day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Siagi Learned Counsel for the Appellant.
Kraido Learned Counsel for the Respondents
Kendi – Court Assistant.
1. In the Notice of Motion application dated and filed on 9th July 2026, the Applicant herein sought that this court do stay proceedings in Ngong Chief Magistrate’s Court Case No. MCELC E002 of 2024 pending hearing and determination of this application and the hearing and determination of this case. He also sought that costs be in the cause.
2. The Applicant swore an affidavit in support of the said application on 9th July 2026 where he averred that the Respondent during the pendency of this suit transferred one of the suit properties, L.R No. Ngong/Ngong/62295 (hereinafter referred to as the suit property) to her sister which necessitated him to file Ngong MCELC E002 of 2024.
3. He further averred that when the said matter came up for hearing on 19th March 2026, the learned magistrate after hearing the evidence of the Plaintiff opined that the High Court ought to hear the matrimonial cause first as it found that the issue was whether the suit property was a matrimonial property and on its recovery and the learned magistrate thus deferred the proceeding of the case to 14th May 2026.
4. He stated that on 14th May 2026, the learned magistrate deferred the matter to 2nd July 2026. He further stated that the instant suit came before this court on 22nd June 2026 whereby they informed this court of the sentiments by the lower court and this court gave direction on the manner of disposal of the instant suit.
5. He claimed that when the lower court matter was mentioned on 2nd July 2026, the learned magistrate indicated that this court ought to have made clear orders directing stay of proceedings in the lower court matter and, in absence of such orders, the learned magistrate ordered the lower court matter to proceed for hearing on 20th August 2026.
6. He was therefore emphatic that it was necessary for the orders sought be allowed.
7. In opposing the application, the Respondent filed a replying affidavit dated 15th July 2026 and she averred that the lower court matter, Ngong MCELC E002 of 2024 was a land case concerning the title to and ownership of the suit property. She pointed out that the lower court matter being a land case, this court had no jurisdiction to issue orders sought by the Applicant.
8. Parties were ordered to file written submissions. The Applicant filed written submissions dated 28th July 2026. The Respondent’s submissions were also dated and filed on 28th July 2026. The Ruling herein is based on parties’ written submissions which both parties relied upon in their entirety.
ANALYSIS
9. The Applicant claimed that the Respondent was his wife but their marriage was dissolved on 29th September 2020 vide Ngong Divorce Cause 17 of 2020. He further claimed that the suit properties were acquired during the marriage hence, they were matrimonial properties and that is why he filed the instant case seeking a declaration that they were matrimonial properties.
10. He stated that he was served with pleadings by Respondent’s sister seeking his eviction from the suit property since the said sister had bought the land. He asserted that a ruling was delivered by Hon A.N. Makau who stated that the suit property was a matrimonial property and a suit had been filed to determine the same. He submitted that he realised that the suit property herein had been transferred to the Respondent’s sister and a different financier had been used. This necessitated the filing of the lower court matter that is subject to this ruling, seeking cancellation of the transfer.
11. With regards to jurisdiction of this court, he cited Owners of Motor Vessel Lillians (sic) vs Caltex Oil (K) Ltd [1989] Eklr, where the court emphasised on jurisdiction and stated that jurisdiction must be acquired before a judgment could be given. He also cited Samuel Macharia & Anor vs Kenya Commercial Bank Ltd & 2 others [2012] eKLR, where the Supreme Court held that a court could only exercise jurisdiction as conferred by the constitution or statute and without jurisdiction, a court could not entertain proceedings.
12. He invoked Sections 6 and 7 of the Matrimonial Property Act and stated that Section 6(c) of the said Act gave the necessary jurisdiction and he cited FHJ vs EAR Civil appeal No. 108 of 2019, and he claimed that the court in the said case held that the high court had jurisdiction with respect to matrimonial property. He also placed reliance on Jane Nenjala Sasita vs William Wanyinyi Sasita & Anor ELC Case No. 114 of 2019 (sic), to emphasis on jurisdiction. He was emphatic that this court had requisite jurisdiction to entertain the matter.
13. The Respondent on her part maintained that the reliefs sought in the lower court related to title to land which was regulated by Land Registration Act and the Land Act. She also pointed out that the parties in the lower court matter were different from parties in this suit therefore, this court lacked the requisite jurisdiction and she placed reliance on Owners of the Motor Vessel Lillian S vs Caltex (supra).
14. She invoked Article 162(2)(b), Article 165(5)(b) of the Constitution and Section 13 of the Environment and Land Court Act and asserted that while this court may exercise jurisdiction in the matrimonial property cause, it could not issue orders interfering with proceedings pending before a court exercising jurisdiction under the Environment and Land Court Act and affect parties who had not been given an opportunity to be heard in the application. She was emphatic that the existence of matrimonial proceedings did not confer upon this court jurisdiction to stay or control matters pending before a court exercising jurisdiction under the ELC Act and Section 9 of the Magistrate’s Court Act.
15. She referred this court to the holding in Co-operative Bank of Kenya Limited vs Patrick Kang’ethe Njuguna & 5 others [2017] eKLR where the court held that where a dispute was within the mandate of ELC court, it was only that court which had jurisdiction to hear the matter.
16. Notably, the Respondent raised a jurisdictional issue which this court thought it prudent to determine it first since jurisdiction is at the core of exercise of power by a court. Where there is no jurisdiction, the court cannot exercise power without violating the principles of rule of law and legality. The Court of Appeal in in Owners of the Motor Vessel “Lillian S” vs. Caltex (supra) stated:
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
17. The Applicant herein filed a plaint in the lower court which sought for the following orders: -
i. An order of injunction restraining the Defendants and/or their agents and/or servants and/or anybody claiming through or under them from interfering with the Plaintiff's exclusive, quiet enjoyment and/or occupation and use of the suit property namely L.R. NO. Ngong/Ngong/62295.
ii. A declaration that the transfer of the suit land into the name of the 2nd Defendant and the lodgement of a charge in favour of the 3rd Defendant were and still are null and void ab initio.
iii. An order do issue directing the Land Registrar within whose jurisdiction the suit property namely L.R. Ngong/Ngong/62295 is situated and registered to cancel the transfer of the suit property from the 1st Defendant to the 2nd Defendant and cancel the charge in favour of the 3rd Defendant which was registered on the 9th day of August 2023.
iv. That an order do issue directing that no further dealings with respect to the suit land shall be entertained by the relevant Lands Registry and/or Land Registrar pending the hearing and determination of Kajiado High Court E006 of 2022
v. Costs of this suit.
18. Clearly, the Applicant was seeking for non-interference with his exclusive, quite enjoyment, occupation and use of the suit property, that the transfer to 3rd Defendant and subsequent charge was null and void and cancellation of the transfer by the land registrar.
19. Article 165(5) of the Constitution provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2). Article 162(2) of the Constitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and use and occupation of, and title to land. Article 162(3) provides that Parliament shall determine the jurisdiction and functions of the Courts contemplated in Article 162(2). It was on the basis of this provision that Parliament enacted the Environment and Land Court Act. The object of the Act is stated as follows: -
“An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to land, and to make provision for its jurisdiction, functions and powers, and for connected purposes
20. Environment and Land Court Act Section 13, the Act provides that: -
(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.
(5) 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;
(f) restitution;
(g) declaration; or
(h) costs.”
21. Subsequent to the above section, our courts have identified the correct approach in determining the appropriate court to hear land related matters by inquiring what the most substantial question or issue presented in the controversy is. The court in Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR, held that;
“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. 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. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue.”
22. In the matter before the lower court, the dispute related to transfer of the suit property to the 2nd Defendant therein and subsequent charge to the 3rd Defendant. However, the Applicant, being the Plaintiff in the lower court matter also claimed that the suit property was a matrimonial property and cited the 1st and 2nd Defendants for fraud for entering into a sale agreement when they knew that the suit property was acquired during the pendency of marriage.
23. As to whether this court has jurisdiction to stay the lower court matter, the Applicant referred this court to the case of FHJ vs EAR [2025] KECA 596 (KLR), where in the opinion of this court, the matter was different to the issues before the lower court since the dispute in the said matter related to ownership of the suit property between a couple who had divorced unlike the matter in the lower court where the dispute is on sale and transfer and charging of the suit property to 3rd parties.
24. He also referred this court to the case of Sasita vs Sasita & another [2026] KEELC 1636 (KLR), cited by Applicant as Jane Nenjala Sasita vs William Wanyinyi Sasita & Anor ELC Case No. 114 of 2019 (sic) whereby the claim related to the plaintiff’s contribution to the acquisition of the suit property, whether the same constituted matrimonial property and whether spousal consent was necessary before sale.
25. My view is that what was before the lower court was not on division of matrimonial property but on quite occupation, sale, transfer and subsequent charging of the suit property claimed to be matrimonial property. The issue as to parties’ right regarding matrimonial property and whether the suit property was matrimonial property is a life issue before this court. Notably, the suit before the lower court was filed as MCELC E002 of 2024 thus invoking the Magistrates Court ELC jurisdiction. The prayers also sought as seen earlier were also predominantly on occupation and disposition of the suit land which in my view lies with the ELC court. This court is yet to make a determination as to whether the suit property was a matrimonial property or not as sought in the originating Summons dated 18th November 2022 before this court and, therefore, this court cannot make orders relating to land which it has not determined whether it was matrimonial property or not.
26. Having said so, it is my humble opinion that this court has no jurisdiction to stay the proceedings in Ngong Chief Magistrate’s Court Case No. MCELC E002 of 2024.It is trite law that grant of an order of stay of proceedings is discretionary. F. Gikonyo while expressing on the seriousness of an order for stay of proceedings in Saham Assurance Compnay Limited v Lameck Okari Mairura [2021] eKLR, quoted the passage in 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.” ……
27. The Learned judge further quoted Ringera J (as he then was) in Daniel Walter Rasugu Nbi Hccc No 15 of 2006; Global Tours & Travel Limited; Nairobi HC Winding Up Cause No.43 of 2000, where the judge set some considerations to be considered as follows: -
“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 in deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. It will also consider such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”
28. The Learned judge concluded by stating that;
“Be that as it may, the greater constitutional concern in an application for stay of proceedings is for the court to zealously guard against impediment of the right to fair hearing, access to justice and the need for expeditious disposal of cases. Therefore, the test for stay of proceedings is quite stringent for it interferes with a person’s right to litigate his grievances in court expeditiously and without unnecessary interruption. Thus, although the decision by Ringera J (as he then was) was determined before the Constitution of Kenya, 2010, the statement that ‘’….the sole question is whether it is in the interest of justice to order a stay of proceedings’’ is an indication that right to litigate a suit before a court of law should not be interrupted easily except in the interest of justice.”
Final orders.
29. Therefore, the test is whether it will be in the interest of justice to order stay of the proceedings before the lower court or not. It is my finding that I should let the Lower Court proceed with the case before it.I dismiss the Application dated 9th July 2026; costs will be in the cause.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 31st day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Siagi Learned Counsel for the Appellant.
Kraido Learned Counsel for the Respondents
Kendi – Court Assistant.