Introduction
1. The background is that the suit was filed as Succession Cause No. 145 of 2011 at Eldoret High court. In a ruling delivered by Omondi H J (as she then was) on 22nd May 2020, the Honourable Judge ordered that the file be transferred to the Environment and Land Court, Eldoret to determine the issue of trust. When the matter was placed before Onyango Jane J on 19th October, 2022 she noted that the matter was under the territorial jurisdiction of Iten Environment and Land Court and transferred the file to this court for hearing and determination.
2. From the day the file was transferred to this court, the defendants (first set of defendants) and objectors (second set of defendants) have used every trick in the book to scuttle the hearing of the suit as l will demonstrate shortly. The 1st and 2nd defendants filed an application dated 23rd May, 2023 seeking to strike out the proceedings before this court on the ground that the court lacks jurisdiction to handle an objection in succession proceedings.
3. This court delivered a ruling for the aforesaid application on 19th December, 2023 and held as follows;
“I have read the pleadings filed in the succession cause and noted that the major issue is whether the parcels of land in question are subject to a trust in favour of the objectors, now plaintiff. Whereas the application by the applicant raises pertinent issues concerning the form of the case, I do find that issue was addressed by the court through the order or directions given 23rd May 2016. Those orders clearly addressed the issues raised by the applicant by converting the pleadings filed by the parties to a plaint and statements of defence as the case may be. It is the considered view of this court, that it is this court and not the succession Court which has mandate to hear and determine the issue of trust pleaded by the objectors/now plaintiffs and denied by the petitioners now the defendants. I agree with the respondents’ submission that the issue of want of form of the pleadings should not be elevated to fetish at the expense of substantive justice which the court is required to dispense to parties without undue regard to procedural technicalities. Through their responses and submissions, the applicants have submitted that the respondents need to file a suit based on trust. The court record shows that there is already a suit based on trust. The suit though began as a succession cause, was converted by the court to a plaint and the pleadings filed by the petitioners converted into statements of defence. If the applicants were aggrieved by the directions given by the court, they ought to have appealed against those directions.
I note with concern, that none of the parties has addressed the court on the meaning and import of the order/directions issued on 23rd May 2016, which in my view renders the issues raised by the applicants otiose. Though this is not to say that the court conferred jurisdiction on this court. The jurisdiction arises out of the fact that there is now a plaint and defence raising issue of trust which this court has jurisdiction to hear and determine pursuant to Article 162(2) of the Constitution. It has not been demonstrated by the applicants and the objector what prejudice if any, they stand to suffer if this court proceeds with the case before it and makes a determination as to whether the parcels of land in question are subject to a trust in favour of the respondents. In making that determination, this court would be acting within its constitutional remit.
If there are remedies sought that fall outside the legal and constitutional mandate of the court, the court will decline to address those issues.
The upshot of the foregoing is that the application dated 23rd May 2023 lacks in merits. Consequently, I dismiss it with costs to the plaintiffs/respondents’’
4. After dismissing the application, this court set the suit for hearing. The plaintiffs closed their case on 24th July, 2024 and defence hearing was to commence on 2nd October 2024. On the material day, the 1st and 2nd defendants Advocate and the objectors Advocate, applied for an adjournment on the ground that both advocates were held up in a succession Cause in Eldoret. The application for adjournment was allowed and defence hearing was set down for 31st October, 2024. Before the date for defence hearing, the 1st and 2nd defendants filed the instant application dated 28th October, 2024 seeking to stay proceedings in this matter pending the hearing and determination of the defendant’s intended appeal in Eldoret Appeal No. E066 of 2024 against this Court’s ruling delivered on 19th December, 2023.
5. The application is premised on the grounds stated on its face and supported by the affidavit of Benjamin Kiplagat sworn on 28th October, 2024. It is averred that a ruling delivered on 19th December 2024 by this court converted Eldoret High Court Succession Cause No. 145 of 2011 into a land matter being Iten Environment and Land Court Case No. 76 of 2022; that being aggrieved by the ruling, the defendants/applicants filed a notice of appeal. They urge the court to stay the proceedings until the appeal is heard as the appeal is arguable; that in the event the appeal succeeds, there will be need to have the case revert back to succession proceedings and the matter placed before a court of competent jurisdiction. They argued that if the case proceeds for defence hearing, the intended appeal will be rendered nugatory and precious judicial time will be wasted.
6. The application is opposed vide the replying affidavit of Joseph Kimutai Chesire sworn on 10th December, 2024. He deposes that the application was filed 10 months after delivery of the impugned decision; that the defendants have not established the sufficient loss that they will incur if the orders are not granted nor have they demonstrated sufficient cause to warrant these orders; that they have equally not provided security as will ultimately be binding to them; that the proceedings in this matter have advanced substantially and thus will inflict harm on the plaintiffs as what remains is the defendants’ evidence; that the orders if granted, will inflict injustice on the plaintiffs who seeks to recover land that is currently being used by the defendants.
7. It is their case that the court is devoid of jurisdiction to grant any order to stay the proceedings as the order made on the defendants’ application that is the subject of appeal was a dismissal order which amounts to a negative order incapable of stay. It is their prayer that the application be dismissed.
8. Pursuant to directions given on 29th January, 2025 the application was argued orally.
Analysis and Determination.
9. I have considered the application, affidavits, annexures and oral submissions by the parties and l find the question before the court for determination to be whether the applicants have satisfied the conditions to be granted the orders sought.
10. Stay of proceedings is provided under Order 42 Rule 6 (1) of the Civil Procedure Rules.
“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
11. The test for stay of proceedings was captured in the case of Turbo Highway Eldoret limited v Synergy Industrial Credit Ltd (2016) eKLR as follows;
“a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.”
12. The instant application is premised on the argument that this court converted Eldoret Succession Cause No. 145 of 2011 into a land matter vide the ruling delivered on 19th December, 2023. The court’s pleadings and proceedings show that the High Court Eldoret, transferred this matter to the Environment and Land court. In her ruling delivered on 22nd May, 2020 Omondi H J (as she then was) stated:
“…it would be absolutely myopic to conclude that this is purely succession issue, as the respondents do claim to be beneficiaries of the estate. The mere fact that Kimondo J gave direction as to how the matter was to proceed, did not in any manner transform the nature of what is in dispute. Indeed, as observed by the applicants’ counsel, the desire to make declaration that the contested parcel was held in trust, in my view falls squarely within the jurisdiction of the Environment and Land Court………. I am persuaded that the cure lies not in striking out the application, but directing that the same be transferred to the court of appropriate Equal status, namely the Environment and Land Court at Eldoret and I so order”.
13. It is clear from the excerpt herein above, that this court made no orders that converted the succession cause to a land matter. No appeal has been filed challenging the decision of Omondi H J (as she then was). As it stands, this court is well within its jurisdiction to hear and determine the case as conferred by Article 162(2) (b) of the Constitution
14. On whether the applicants have satisfied the test for stay of proceedings captured in the case of Turbo Highway Eldoret limited v Synergy Industrial Credit Ltd supra, I note that the applicants have filed a Notice of Appeal to demonstrate that there is an appeal pending before the higher Court. However, no satisfactory explanation has been given by the applicants why stay has not been sought in the higher Court. Second, the applicants have failed to demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable. Third, the applicants have failed to demonstrate that the appeal will be rendered nugatory if the order staying these proceedings is not granted. Fifth, no exceptional circumstances have been demonstrated to make the stay of proceedings warranted as opposed to having the case concluded. Finally, the instant application was not filed expeditiously, as it was filed 10 months after delivery of the impugned ruling.
15. As observed at the beginning of this ruling, the defendants and objectors are hell bent on ensuring the suit is not concluded by this court. They are stubborn and have been taking this court in circles. This court has cautioned them before and cautions them again against wasting precious judicial time as their actions amount to an abuse of the court process as illustrated by the chronology of events.
16. All in all, the application dated 28th October, 2024 is found to be without merit and is dismissed with costs to the plaintiffs.
17. Orders accordingly.
Dated, signed and delivered at Iten this 13th day of February, 2025
Ruling delivered virtually in the presence of;-
Mr. Mogambi for the Plaintiff
Mr. Wainaina holding brief for Mr. Momanyi for the Defendants
Ms Omuya holding brief for Mr. Nyambegera for the Objectors
Court Asst.: Christine