TIMOI FARMS KIARIE (sued as an administrator of joseph wanyoike kiarie-Deceased) VS JOYCE GATHONI KIARIE (SUED AS AN ADMINISTRATOR OF JOSEPH WANYOIKE KIARIE-DECEASED AND JOHNSTONE KIARIE KAMIRA

Timoi Farmers & Estates Ltd hereinafter referred to as the applicant have come to court for orders that Pending the hearing and determination of the Appeal, this Honorable court be pleased to grant an order of stay of execution of the judgment delivered on 5th November, 2020 and any other subsequent orders arising thereof issued in Molo CMCC Land Case No 45 of 2018 between the parties herein. This Honorable Court be pleased to review and vary its orders issued in its ruling delivered on 9th October, 2024 The Record of Appeal filed herewith dated 16th October, 2024 be deemed as duly filed and be transferred into a principle file to be created in the High Court, Environment and Land Court Registry Costs of this application be provided for The applications is based on grounds that there exists an apparent error and/or mistake on record arising from the Orders issued by this honorable Court in its ruling delivered on 9th October, 2024 as follows: The Applicant is granted leave to file an appeal out of time against the judgment in Molo CMCC and Case No 45 of 2018 delivered on 5th November, 2020. The Memorandum of Appeal dated 4th December, 2020 is hereby deemed to be fully and properly filed and served The Applicant shall compile, file and serve a record of Appeal within 30 days and move the court appropriately towards the finalization of the appeal Each party shall bear their own costs In compliance with the said orders, the Appeal and the Record filed herein were filed in the Miscellaneous file and upon the Court's registry realizing this, there was a recommendation that the Appellate court does issue directions as to the creation of a principle file in the Environment and Land Court registry in order to have proper establishment of the Appeal in court's CTS as well as The Judiciary of Kenya Doc IDENTITY: 313325251624081552722840097 Tracking Number:OO2NHD2025 1/3assessment of documents to be filed. Upon the matter being mentioned before the Learned Judge on 6th May, 2025 counsel for the Appellant informed court that the Miscellaneous file had not been closed and such, the Appeal and the Record of Appeal were filed therein which created a hardship and confusion at the court's registry The Learned Judge noticed the error and/or apparent mistake and urged counsel to make the appropriate application for consideration It has emerged that whilst these proceedings supervene, the 1 st Respondent has in bad faith applied to the trial court and has misled the court with an intention of vacating the stay orders granted therein and consequently execute the judgment being appealed against In so doing, the I S! Respondent filed two contradicting applications dated 10th June, 2025 and 30th September, 2025 and by design did not serve the said applications upon the rest of the parties herein. Consequently, the trial court vacated the stay orders that had been issued on 20th May. 2021 without the knowledge of the Applicant, the 2nd & the 3rd Respondents. It would be prudent to consider this application as deserving and meritorious so that the issues before this court can be heard and determined in a procedure that is fair and just. The Respondents herein are not likely to suffer any prejudice if the orders sought herein are allowed The orders sought herein are for a just determination of the issues before the court in a procedure that is lawful and sound. This application is not made to cause any prejudice upon the Respondents and they are not likely to suffer any damage. The supporting affidavit reiterates the grounds. The 1st respondent filed a replying affidavit stating that the entire application is frivolous, ambiguous, incompetent, an abuse 06 of the court process and is brought in bad faith. Judgment in MOLO ELC NO. 45 OF 2018 was delivered on 5th November 2020 in his favor. The 2nd Respondent herein filed a Memorandum of Appeal dated 4th December 2020 being Nakuru Civil Appeal HCCA No. E016 OF 2020. The memorandum of appeal filed has been overtaken by events as he perused the Civil Appeal HCCA No. E016 OF 2020 and established that the said appeal came up before Justice Dennis Kizito Magare , on 25th January 2023 for Notice to Show Cause on why it should not be dismissed for want of prosecution. On 27th January 2023, the court delivered a ruling striking out the Nakuru Appeal HCCA No. E016 OF 2020 for lack of Jurisdiction. That on 9th October 2024, this Honorable court delivered a ruling in which the Appellant/ Applicant herein was granted leave to appeal out of time and was specifically ordered to compile, file and serve a record within 30 days and the file was closed. The Appellant/ Applicant was fully aware of the strict 30-day limit, yet deliberately failed to comply with the court's orders and did not file any appeal within the limited period. The leave granted to file the record of appeal lapsed automatically upon failure to comply, resulting to no valid appeal on record. Its Appellant/ Applicant's allegations that he "erroneously filed" the record of appeal dated 16th October 2024 in this file, but this allegation is not supported by any evidence. His advocate on record perused this file, Nakuru ELC Misc NO E003 OF 2025, and confirmed it was closed on 9th October 2024 and when the file came up on 6th May 2025 at the instance of the Appellant/ Applicant, the court expressly stated that the file was closed and marked "functus officio" The Appellants/ Applicant's claim that this Honorable Court noted 'inadvertent mistake and error' is a blatant lie as the same sentiments are not reflected in the courts record, nor were there any further directions issued. It is not sufficient for the Applicant to claim an error in the registry while filing his documents, when he took no proper steps for over one year to rectify the alleged errors. Further the Applicant did not The Judiciary of Kenya Doc IDENTITY: 313325251624081552722840097 Tracking Number:OO2NHD2025 2/3file any application for further extension of time, and the mistakes of the Appellant/ Applicant cannot be visited upon the respondent. The Appellant/ Applicant's prayer to review and vary the orders issued on 9th October 2024 is misconceived as it does not meet the threshold of review under Order 45 of the Civil Procedure Code, as there is no discovery of new evidence, no error apparent on the face of the record and no sufficient cause. The suit property has continued to be utilized by the Appellant, and if the orders sought herein are granted, he will continue to suffer grave and irreparable prejudice, he has been unable to enjoy the fruits of the Judgment dated 5th November 2020 which was delivered in his favour. The purpose for the miscellaneous application in this suit was fulfilled once the ruling granting leave was delivered but the Appellant/ Applicant slept on their rights, and the court was right to close the file MR. Fredrick Kairu Maina, counsel of the Appellant, is well versed with the procedure of filling an appeal and cannot now seek to 'breath life into a dead appeal' or improperly convert a miscellaneous application into a substantive appeal in fact this Honorable Court marked the file closed and marked it "functus officio" The instant Application filed herein is improper, vexatious, a waste of judicial time and the same should be dismissed and or struck out with costs to me. I have considered the application and the reply and the rival submissions and do find that the applicant has explained his failure to comply with the court order dated 9th October 2024 where the applicant was given leave to file a record of appeal within 30 days. The applicant has explained that he erroneously filed the record of appeal in the miscellaneous file vide CTS which explanation has not been controverted by the respondent. Articles 159 of the constitution of Kenya 2010 requires the judge to consider giving substantive justice and not to unduly rely on procedural technicalities to deny a party the seat of justice. I do find that the mistakes of counsel should not be visited on the applicant. I do grant the applicant 10 days to file and serve the record of appeal. On stay pending appeal, I do find that the applicant is in possession of the suit property and therefore likely to suffer substantial loss if evicted. I do grant stay pending appeal on condition that the appellant deposits Ksh500,000 in the joint interest earning account to be opened in the names of both advocates within the next 60 days failure of which the orders are vacated. SIGNED BY/FOR: HON. JUSTICE ANTONY O. OMBWAYO THE JUDICIARY OF KENYA. NAKURU ENVIRONMENT AND LAND COURT ENVIRONMENT AND LAND COURT DATE: 2025-12-18 14:09:36 The Judiciary of Kenya