Court of Appeal Judge Justice Gatembu Kairu has disqualified himself from hearing a KSh2.4 billion land dispute involving the family of the late former Minister Mbiyu Koinange.
The case involves Lennah Catherine Koinange, a daughter of the Koinange family, who moved to the Court of Appeal seeking orders to stay proceedings in the Environment and Land Court (ELC) pending the hearing and determination of her appeal.
In her application, Lannah Koinange argued that the ELC had already delivered a judgment quashing a report by the Directorate of Criminal Investigations (DCI) on grounds of procedural impropriety.
She contended that unless the Court of Appeal granted a stay of further proceedings, her appeal would be rendered nugatory.
“Consequently, the present appeal will be rendered nugatory unless the stay of further proceedings sought is granted pending its hearing and final determination,” she stated in her affidavit.
She further maintained that the respondents would not suffer any demonstrable prejudice if the stay was allowed and urged the court to certify the application as urgent.
She told the court that her application was supported by documents annexed to her affidavit, filed as a bundle marked LCK-001, and that the facts deposed were within her personal knowledge, save where otherwise stated.
However, the application was strongly opposed by Nairobi House Limited, the 1st respondent, through its advocate Phillip Nyachoti of Nyachoti & Company Advocates.
In written submissions dated 5 June 2025, Nairobi House Limited argued that the Court of Appeal lacked jurisdiction to entertain the application.
The respondent relied on a judgment delivered on 24 November 2022 by Environment and Land Court judge Justice Angote in Nairobi ELC JR E013 of 2020, where the court quashed the DCI’s investigations and recommendations relating to disputed land titles belonging to Nairobi House Limited and Lennah Catherine Koinange.
The ELC had issued orders of certiorari quashing the DCI report and prohibition barring enforcement of its recommendations, with each party ordered to bear its own costs.
Nyachoti submitted that under Rule 5(2)(b) of the Court of Appeal Rules, the court can only exercise its discretionary jurisdiction after a valid notice of appeal has been lodged against a specific decision.
Citing the decision in Halai & Another v Thornton & Turpin, the 1st respondent argued that where no notice of appeal has been filed, the Court of Appeal has no jurisdiction to grant orders of stay of proceedings.
The respondent further contended that any application for stay relating to Nairobi ELC No. 434 of 2017 could only be made after a decision in that matter had been appealed against, and not through what it termed a perceived nexus between separate and independent proceedings.
“It is our humble submission that the applicant should not be allowed to invoke this court’s jurisdiction through craft and innovation under the guise of administering justice,” Nyachoti argued.
The respondent maintained that the appeal could not, in any manner, be rendered nugatory and accused the applicant of employing delay tactics intended to obstruct the expeditious determination of the ELC case, contrary to the principles of judicial efficiency and access to justice under Article 159 of the Constitution.
In conclusion, Nairobi House Limited urged the Court of Appeal to dismiss the application, terming it incompetent, misconceived, and an abuse of the court process, and sought costs.
