Mbugua & 3 others v Turi Gardens Limited [2025] KEELC 34 (KLR)

Mbugua & 3 others v Turi Gardens Limited (Environment and Land Case Civil Suit E363 of 2024) [2025] KEELC 34 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 34 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Case Civil Suit E363 of 2024

JO Mboya, J

January 16, 2025

Between

Elizabeth Nyawira Mbugua

1st Plaintiff

Sophia Wanjiru Mbugua

2nd Plaintiff

Johnson Kagua Mbugua

3rd Plaintiff

Ian Wahome Mbuguat/a Mowaka Auto Centre

4th Plaintiff

and

Turi Gardens Limited

Defendant

Ruling

Introduction and Background 1. The Defendant/Applicant [hereinafter as to the Applicant] has filed the Notice of motion application dated the November 15, 2024 and wherein same [Applicant] has sought for the following reliefs;i.That pending the hearing and determination of this suit, this Honourable Court be pleased to grant an order for stay of proceedings in the Business Premises Rent Tribunal E1165 of 2024. ii.That pending the hearing and determination of this suit, this Honourable Court be pleased to vacate the orders issued in the Business Premises Rent Tribunal E1165 OF 2024 on 29th November 2024 granting the Plaintiffs herein a temporary injunction against the Defendant pending inter-partes hearing.iii.That this Honourable Court be pleased to extend time granted to the Defendant for furnishing of the deposit of Kshs. 2,500,000/- Only and filing of the undertaking in addition to the 30 days granted by Justice J. Oguttu Mboya vide his Ruling delivered on 14th October 2024. iv.That this Honourable Court be pleased to direct that the deposit of Kshs.2,500,000/ Only, provided by the Defendant and the undertaking be deposited in court and be deemed as duly furnished in accordance with the Court's Ruling of 14th October 2024. v.That costs of this Application be provided for.

2. The instant application is premised on various grounds which have been highlighted at the foot thereof. In addition, the Application is supported by the affidavit one, Cecil Miller, advocate sworn on even date.

3. Upon being served with the instant application, the Respondents herein filed a Notice of preliminary objection dated the 21st November 2024; and Replying affidavit sworn by the 1st Plaintiff/Respondent on the 22nd November 2024. In particular, the Respondents have contended inter-alia that the application beforehand is misconceived and legally untenable. Furthermore, it has been contended that the court is functus officio and thus divested of jurisdiction to entertain the application beforehand.

4. The instant application came for hearing on the 21st November 2024; whereupon the advocates for the respective parties covenanted to canvass both the application and the preliminary objection simultaneously. Besides, the advocates for the parties also agreed to file and exchange written submissions. To this end, the court proceeded to and circumscribed the timelines for the filing and exchange of the written submissions.

5. The Applicant proceeded to and filed written submissions dated the 25th November 2024; whereas the Respondents filed written submissions dated the 6th December 2024. Suffice it to state that the two [2] sets of written submissions are on record.

Parties’ Submissions: a. Applicant’s Submissions: 6. The Applicant filed written submissions dated the 25th November 2024; and wherein the Applicant has reiterated the grounds contained at the foot of the application. Furthermore, the applicant has also highlighted the averments in the body of the supporting affidavit sworn by one Cecil Miller, advocate. Additionally, learned counsel for the Applicant has proceeded to and canvassed four [4] salient issues for determination by the court.

7. Firstly, learned counsel for the Applicant has submitted that the supporting affidavit sworn by Mr. Cecil Miller, advocate is lawful and valid. In particular, it has been contended that an advocate is not prohibited from swearing an affidavit in a matter wherein same is acting for a party, provided that the facts deposed to are within the knowledge of the advocate. Furthermore, learned counsel for the Applicant has submitted that the averments deposed to and contained in the body of the supporting affidavit are facts which are borne out of the record of the court and are thus not contentious.

8. Other than the foregoing, learned counsel for the Applicant has submitted that the contention by and on behalf of the Respondents that the affidavit sworn by counsel is invalid, is erroneous and misleading.

9. In support of the foregoing submissions, learned counsel for the Applicant has cited and referenced the decision in the case of Catriage and Prints services Kenya Ltd v Techno Service Ltd [Civil Appeal No. E037 of 2021] [2021] KEHC 295 [KLR].

10. Secondly, learned counsel for the Applicant has submitted that this court is seized and possessed of the requisite jurisdiction to grant an order of stay of proceedings, namely, the proceedings vide BPRT No. E1165 of 2024. Additionally, learned counsel has submitted that the issues which have been raised before the tribunal are the issue which were raised and canvassed before this court. Besides, it has been posited that the parties are the same.

11. Arising from the foregoing, learned counsel for the Applicant has submitted that it was not open for the Respondents herein to proceed and file the impugned proceedings before the Business Premises Rent Tribunal. In any event, it has been contended that the filing of the proceedings before the tribunal contravene the doctrine of res-sub-judice and by extension, the provisions of Section 6 of the Civil Procedure Act.

12. To this end, learned counsel for the Applicant has cited and referenced inter-alia the case of Kenya National Commission on Human Rights & Attorney General; Independent Electoral & Boundari Commission & 16 Others [Interested Parties] [2020]eKLR; Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex-parte Law Society of Kenya [2020]eKLR and Edward R Ouko v Speaker of The National Assembly [2017]eKLR.

13. Fourthly, learned counsel for the Applicant has submitted that the court is seized of the requisite jurisdiction to extend time to furnish the deposit of Kes.2, 500, 000/= Only, decreed at the foot of the ruling rendered on the 14th October 2024.

14. Furthermore, it has been contended that even though the Applicant was ready and willing to deposit the sum of Kes.2, 500, 000/= only, in the Escrow account in the manner directed by the court, the intended deposit was frustrated by the Respondents herein who failed to execute the requisite account opening documents.

15. In particular, learned counsel for the Applicant has submitted that without the co-operation of the Respondents herein, it was neither possible nor feasible to open and operationalize the escrow account.

16. In view of the foregoing, learned counsel for the Applicant has therefore impressed upon the court to find and hold that the application beforehand is meritorious and that same [application] ought to be allowed.

b. Respondents’ Submissions: 17. The Respondent filed written submissions dated the 6th December 2024 and wherein same [Respondents] have reiterated the grounds contained at the foot of the Notice of preliminary objection dated the 21st November 2024; and the averments in the Replying affidavit sworn on the 22nd November 2024.

18. Furthermore, learned counsel for the Respondent has thereafter highlighted and canvassed four [4] salient issues for consideration by the court. First and foremost, learned counsel for the Respondent has submitted that the court dealt with and addressed the twin applications that were mounted before the court and disposed of same vide ruling[s] rendered on the 14th and 16th October 2024, respectively. In this regard, it has been contended that upon hearing and disposing of the said applications, the court became functus officio and hence the Applicant herein cannot revert with the application under reference.

19. According to learned counsel for the Respondents, the court became functus officio upon rendition/delivery of the ruling rendered on the 14th and 16th days of October 2024, respectively.

20. To buttress the submissions touching on and concerning the doctrine of functus officio, learned counsel for the Respondent has cited and referenced inter-alia the case of Raila Odinga & 2 Others v IEBC & others [2013]eKLR, Telkom Kenya Ltd v John Ochanda, respectively.

21. Secondly, learned counsel for the Respondent has also submitted that the court is also divested and devoid of jurisdiction to grant the orders sought to the foot of the application dated the 15th November 2024. In this regard, it has been contended that without the requisite jurisdiction, this court ought to down its tools.

22. Further and at any rate, it has been submitted that if the Applicant was aggrieved by the orders made/issued by the tribunal, then the Applicant herein ought to have filed an appeal in the manner provided for vide Section 15 of the Landlord & Tenants [Shops, Hotels & catering Establishment] Act, Cap 301 Laws of Kenya. In a nutshell, learned counsel for the Respondent has posited that the court is devoid of jurisdiction to entertain and adjudicate upon the subject application.

23. To this end, Learned Counsel has referenced the decision of Owners of Motor Vessel Lilian S v Caltex Oil Kenya [1989]EKLR and Samuel K Machria & Another v Kenya Commercial Bank Ltd & 2 Others [2014]eKLR, respectively.

24. Thirdly, learned counsel for the Respondents has also submitted that the application filed by the Applicant herein is fatally defective and thus legally untenable. In this regard, it has been submitted that an application seeking for orders of temporary injunction or better still injunctive reliefs must be premised/grounded on a substantive suit.

25. Nevertheless, learned counsel for the Respondents has submitted that application beforehand is not premised and/or anchored on any substantive suit and to this end, the application is legally untenable.

26. To buttress the foregoing submissions, namely, that an application for injunctive reliefs must be anchored on a substantive suit, learned counsel for the Respondents has cited and referenced inter-alia the provisions of Order 40 Rule 1 and Order 3 Rule 1 of the Civil procedure Rules. In addition, learned counsel for the Respondents has also cited the decision in the case of Tatecoh Housing & Cooperative Sacco Ltd v Kwetu Sacco Ltd [2021]eKLR.

27. Fourthly, learned counsel for the Respondents has submitted that the supporting affidavit sworn by Cecil Miller Advocate is invalid and thus incapable of underpinning the application. To this end, it has been contended that an advocate is not authorized to swear an affidavit on contentious matters and where an advocate swears an affidavit on contentious matters, such an affidavit ought to be invalidated.

28. Premised on the foregoing submissions, learned counsel for the Respondents has therefore impressed upon the court to find and hold that the supporting affidavit sworn by Cecil Miller, advocate is incompetent and ought to be expunged. In addition, it has been contended that once the impugned affidavit is expunged from record/invalidated, then the application shall remain devoid of evidential anchorage.

29. To buttress the submissions that an advocate is not authorized to swear an affidavit on contentious matters, Learned Counsel for the Respondents has cited the decision in the case of Albany Tailor & Another v Christopher Tailor & Another [2005]eKLR and East Africa Foundry Works Kenya Ltd v Kenya Commercial Bank Ltd [2002] 1 KLR 4443.

30. Finally, learned counsel for the Respondents has also submitted that the application beforehand is devoid of merits and thus same ought to be dismissed. Furthermore, learned counsel has implored the court to proceed and award costs to the Respondents.

31. To underscore the Respondents’ entitlement to costs of the application, learned counsel for the Respondents has cited and referenced inter-alia the decision in the case of Jasbir Sing Rai & 3 Others v Talochand Sing Rai & Others [2014]eKLR and Republic v Communication Authority of Kenya Ex-parte Legal Advice Centre AKA Kituo Cha Sheria [2015]eKLR.

Issue For Determination: 32. Having reviewed the application dated the 15th November 2024; the notice of preliminary objection dated the 21st November 2024; and the Replying affidavit sworn by the 1st Respondent on the 22nd November 2024; and upon taking into consideration the written submissions filed on behalf of the respective parties, the following issues do emerge [crystalize] and are thus worthy of determination;i.Whether the supporting affidavit Mr. Cecil Miller, advocate; is invalid and thus ought to be struck out or otherwise.ii.Whether the Court is functus officio and thus devoid of jurisdiction to entertain the application dated the 15th November 2024. iii.Whether the suit filed before the BPRT, namely BPRT Cause No. E1165 of 2024 is barred by the doctrine of res-sub-judice and by extension Section 6 of the Civil Procedure Act.iv.Whether the honourable court is seized of jurisdiction to extend time to furnish the deposit of Kes.2, 500, 000/= only by the Applicant or otherwise.

Analysis and Determination Issue Number 1 Whether the supporting affidavit Mr. Cecil Miller, advocate; is invalid and thus ought to be struck out or otherwise. 33. Learned counsel for the Respondents has submitted that the affidavit in support of the application dated the 15th November 2024 has been sworn by Mr. Cecil Miller, advocate. To the extent that the supporting affidavit is sworn by the advocate acting for the Applicant, it has been contended that the supporting affidavit is thus incompetent and invalid.

34. Additionally, learned counsel for the Respondents has submitted that an advocate as an officer of the court is bound to assist the Court in delivering justice and hence same [advocate] is barred from swearing affidavit on contentious matters/issues.

35. Premised on the basis that an advocate is not mandated to swear an affidavit on contentious matter[s], learned counsel for the Respondents has submitted that the affidavit sworn by Mr. Cecil Miller, advocate; is therefore invalid and ought to be expunged from the record of the court.

36. Additionally, it has been contended that once the impugned affidavit is expunged from the record of the Court, the application beforehand would be left bare and devoid of evidential anchorage. To this end, it has been submitted that the application would thus be rendered defective and hence worthy of being dismissed with costs.

37. On the other hand, learned counsel for the Applicant has submitted that the averments contained at the foot of the supporting affidavit are issues and matters within the knowledge of the deponent. In this regard, it has been contended that where the facts deponed to are within the knowledge of the advocate, the advocate is at liberty to swear an affidavit in a matter wherein same [advocate] is acting for a party.

38. Having considered the rival submissions, I beg to take the following position. Firstly, it is trite and established that any party/person, whether advocate or otherwise is at liberty to swear an affidavit for use in a court of law. Nevertheless, it is pertinent to state and observe that it is incumbent upon the deponent to ensure that the averments being deposed to are within his/her own knowledge, save where the law allows deposition on the basis of belief and information. [See Order 19 Rule 3 of the Civil Procedure Rules, 2010].

39. For ease of appreciation, it suffices to reproduce the provisions of Order 19 Rule 3 of the Civil Procedure Rules 2010.

40. Same are reproduced as hereunder;3. Matters to which affidavits shall be confined [Order 19, rule 3](1)Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.(2)The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.

41. Secondly, even though an advocate is at liberty to swear an affidavit in a matter wherein same is acting for a party, however, care and caution must be taken by the advocate. In particular, an advocate is only at liberty to swear an affidavit touching on matters/facts which are within/her own knowledge and not otherwise.

42. Additionally, there is no gainsaying that where the matter and/or facts are borne out from the record of the court and same are not in contest, then an advocate can also depose to an affidavit. Nevertheless, it is instructive to underscore that an advocate cannot swear an affidavit and depose to contentious Evidential matters.

43. Put differently, it is trite and established that an advocate cannot swear an affidavit and depone to contentious matters. For good measure, where an advocate swears an affidavit and depones to contentious matters, there arises a likelihood of the advocate being invited to step down from the privileged position and thereafter be subjected to cross examination. Quite clearly, such a scenario would create an absurdity and thus ought to be eschewed at all costs.

44. To underscore the foregoing position, it suffices to take cognizance of the holding in the case of Kisya Investment Limited & others v Kenya Finance Corporation Ltd HCCC No 3504 of 1993 (Unreported), where Ringera J [as then was] stated thus:“It is not competent for a party’s advocate to depone to evidentiary facts at any stage of the suit. By deponing to such matters, the advocate courts an adversarial invitation to step (down) from his privileged position at the Bar, into the witness box. He is liable to be cross-examined on his depositions. It is impossible and unseemly for an advocate to discharge his duty to the court and his client if he is going to enter into the controversy as a witness. He cannot be both counsel and witness in the same case. Besides that, the counsel’s affidavit is defective for the reason that it offends the proviso (to) order XVIII rule 3 (1) (now order 19 rule 3 of the Civil Procedure Rules failing to disclose who the sources of his information are and the grounds of his belief.”[Emphasis supplied].

45. The foregoing position of the law was re-affirmed in the case of East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd (Civil Suit 1077 of 2002) [2002] KEHC 1122 (KLR) (Civ) (22 October 2002) (Ruling), where the court held thus;I have always deprecated depositions by advocates on contentious matters of fact in suits or applications which they canvass before the courts and I have never had any hesitation in striking out such depositions as a matter of good practice in our courts.[Emphasis supplied].

46. Be that as it may, it must not be lost on this court that the decisions referenced in the preceding paragraphs dealt with the aspect where the affidavit relates to contentious evidentiary matters. Instructively, no advocate is at liberty to swear an affidavit and depone to contentious matters in a case where same [advocate] is retained to act for a party.

47. Nevertheless, where the issues or matters in question are within the knowledge of the advocate and are not contentious or where the matters are borne out by the court record, then an advocate is at liberty to swear an affidavit and depone to such matter. [See the provisions of Order 19 Rule 3 of the Civil Procedure Rules, 2010]

48. Pertinently, it is my finding and holding that the bar and prohibition of advocate swearing affidavits touches on and concerns deposition of contentious evidential matter[s]. For good measure, the bar/prohibition is not absolute and/or infinite. Simply put, there are known exceptions under the Law and these exceptions suffice.

49. To buttress the foregoing position, it suffices to cite and reference the decision of the Supreme Court of Kenya in the case of Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 56 (KLR) (Election Petitions) (26 September 2022) (Judgment).136. This court cannot countenance this type of conduct on the part of counsel who are officers of the court. Though it is elementary learning, it bears repeating that affidavits filed in court must deal only with facts which a deponent can prove of his own knowledge and as a general rule, counsel are not permitted to swear affidavits on behalf of their clients in contentious matters, like the one before us, because they run the risk of unknowingly swearing to falsehoods and may also be liable to cross-examination to prove the matters deponed to.

50. Having reviewed the obtaining jurisprudence in terms of the preceding paragraphs, it is now apposite to revert to the matter beforehand and to consider whether the supporting affidavit contains any contentious matters or facts or otherwise. Suffice it to point out that the issues highlighted and captured in the body of the supporting affidavit are borne out by the record of the court.

51. Additionally, there is no gainsaying that the matters/issues that have been adverted to by the deponent of the supporting affidavit are issues that are within the knowledge of the deponent. Notably, it is the deponent adverting to the endeavours made by same [deponent] to procure the account opening documents and to have same executed by the Respondents.

52. To my mind, the contents of the supporting affidavit fall squarely within the purview and knowledge of the deponent. In this regard, I am not persuaded by the arguments advanced by learned counsel for the Respondents.

Issue Number 2 Whether is functus officio and thus devoid of jurisdiction to entertain the application dated the 15th November 2024. 53. The second issue that was raised and canvassed by learned counsel for the Respondents touches on and concerns the doctrine of functus officio. Suffice it to point out that learned counsel for the Respondents submitted that the court became functus officio upon delivery of the rulings rendered on the 14th October 2024 and 16th October 2024, respectively.

54. It was the further submissions by learned counsel for the Respondents that this court cannot now be invited by the Applicant to engage with and adjudicate upon the application dated 15th November 2024.

55. Despite the submissions by and on behalf of the Respondents, I beg to state that the rulings rendered on the 14th October 2024 and 16th October 2024, do not deprive this court of the jurisdiction to entertain the subject application. For coherence, the Ruling[s] being referenced by the Respondents touched on and concerned application[s] for temporary injunction that were mounted by the Respondents and which were dismissed by the Court.

56. Other than the foregoing, it is also apposite to underscore that the doctrine of functus officio does not suffice in the circumstances in the matter beforehand.

57. Instructively, this court is conferred with the jurisdiction to engage with the application beforehand, which inter-alia seeks for enlargement of time, taking into account the provisions of Section 95 of the Civil Procedure Act. Chapter 22 Laws of Kenya as read together with Order 50 Rule 6 of the Civil Procedure Rules.

58. Without belabouring the point, it is my finding and holding that the doctrine of functus officio which has been highlighted and referenced by learned counsel for the Respondents is irrelevant and inapplicable in the matter beforehand.

Issue Number 3 Whether the suit filed before the BPRT, namely BPRT Cause No. E1165 of 2024 are barred by the doctrine of res-sub-judice and by extension Section 6 of the Civil Procedure Act. 59. The Applicant herein has submitted that following the delivery of the rulings rendered on the 14th October 2024 and 16th October 2024, respectively, the Respondents herein proceeded to and filed proceedings before the Business Premises Rent tribunal. To this end, the Applicant has referenced the proceedings vide BPRT Cause No. E1165 of 2024.

60. Additionally, it has been submitted that the issues raised and canvassed in the suit before the tribunal are the same issues which were raised before this court and which were dealt with vide the rulings under reference.

61. Other than the foregoing, it has also been contended that the parties to the dispute before the tribunal are the same parties before this court. In this regard, it is the Applicant’s position that the Respondents have filed parallel proceedings before the Business Premises Rent Tribunal.

62. It is instructive that the Respondents herein have neither controverted nor challenged the position adverted to by the Applicant. For good measure, the Respondents have not disputed the filing of parallel proceedings before the Business Premises Rent Tribunal over and in respect of the same matter.

63. To my mind, it was not open for the Respondent to file and commence parallel proceedings before the tribunal. Indeed, the filing of the proceedings before the tribunal during the subsistence of the instant matter does not bode/portend well with the due process of the law, given the likelihood of conflicting orders being issued by the two institution[s].

64. Insofar as the subject proceedings are still pending before this court, the filing of the proceedings before the BPRT constitute a violation of the doctrine of re-sub-judice. To this end, the impugned proceedings before the BPRT cannot be allowed to proceed simultaneously with the subject matter. Consequently, there is no gainsaying that the subsequent proceedings ought and should be stayed.

65. As pertains to the import and tenor of the doctrine of res-sub-judice, it suffices to reference the decision of the Supreme Court of Kenya in the case of Kenya National Commission on Human Rights v Attorney General;Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling); where the Court stated thus:67. The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as:“Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.

66. Pertinently, my answer to issue number three [3] is to the effect that the parallel proceedings before the BPRT violate the doctrine of res-sub-judice. In this regard, it is appropriate to invoke and deploy the sanction underpinned by the provisions of Section 6 of the Civil Procedure Act, Chapter 21 Laws of Kenya.

Issue Number 4 Whether the honourable court is seized of jurisdiction to extend time to furnish the deposit of Kes.2, 500, 000/= only by the Applicant or otherwise. 67. Vide the application beforehand, the Applicant has sought to have the timelines for furnishing the deposit of Kes.2, 500, 000/= extended. Furthermore, the Applicant has also sought for variation of the terms and in particular, that the deposit be made to court in lieu of the escrow account in the manner directed at the foot of the ruling dated the 14th October 2024.

68. It is the contention by the Applicant that even though same [Applicant] was ready and willing to furnish the deposit, his [Applicant’s endeavours] have been frustrated by the Respondents herein. In particular, it has been contended that the Respondents have been unwilling to co-operate and to facilitate the opening/operationalization of the escrow account.

69. Similarly, I beg to point out that the Respondent’s counsel did not find it apposite to respond to this limb of the application. In particular, the averments touching on lack of co-operation by the Respondents and the submissions in this respect, have not been answered.

70. In my humble view it behoved the Respondents and their counsel to comply with and/or abide by the directions of the court. For coherence, the obligation placed upon the parties, the Respondents not excepted, is an unqualified, save only where an order of stay has been granted. [See Hadkinson v Hadkinson [1952] P 285].

71. To the extent that the Respondents have not been willing to co-operate with the Applicant towards the opening and operationalization of the escrow account, it is my finding and holding that sufficient cause/basis has been laid before the court to warrant the variation of the order under reference.

72. Other than the foregoing, the Applicant has also sought of extension of time with a view to furnishing the deposit.

73. To this end, it is instructive to state that the court is seized of the requisite jurisdiction to engage with the question of extension/enlargement of time. [See Section 95 of the Civil Procedure Act; See Section 57 and 58 of The Interpretation and General Statute Act; See also Article 259[9] of the Constitution 2010].

74. Other than the cited provisions of the law, the jurisdiction of a court of law to extend/enlarge time for the doing of an act either under the rules or vide an order of the court has also received judicial pronouncements in a plethora of decisions.

75. Most recently, the Supreme Court of Kenya dealt with the question of extension/enlargement of time in the case of County Executive of Kisumu v County Government of Kisumu & 8 others (Civil Application 3 of 2016) [2017] KESC 16 (KLR) (Civ) (12 April 2017) (Ruling); where the court stated thus:23. It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as:the under-lying principles that a Court should consider in exercise of such discretion:1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2 .A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;2. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the respondents if the extension is granted;6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

76. In my humble view, the jurisdiction of the court to extend time either under the rules or pursuant to an order, is settled. The court dealing with the application for extension of time needs only to interrogate the circumstances underpinning the application and the reasons advanced by the Applicant.

Final Disposition: 77. Flowing from the analysis [details highlighted in the body of the ruling], it is evident and apparent that the application beforehand is meritorious. In this regard, the court is disposed to allow same albeit on terms.

78. In the circumstances, the application dated the November 15, 2024; be and is hereby allowed in the following terms;i.There be and is hereby granted an order of stay of proceedings in respect of BPRT Cause No. E1165 of 2024. To this end, the said proceedings be and are hereby stayed pending the hearing and determination of the instant matter.ii.Further and in addition, there be and is hereby granted an Order of Stay of execution of the Orders of the Business Premises Rent Tribunal issued vide Cause Number E1165 of 2024, pending the hearing and determination of the instant suit.iii.The timelines granted vide the ruling rendered on the 14th October 2024 for furnishing of the deposit of Kes.2, 500, 000/= only and filing the requisite undertaking by the Applicant be and is hereby extended/enlarged.iv.Consequently, the Applicant be and is hereby granted liberty to furnish the deposit of kes.2, 500, 000/= only and to file the requisite undertaking within 15 days from the delivery of the ruling herein.v.Furthermore, the limb of the ruling of the court rendered on the 14th October 2024 which directed the deposit to be made in an escrow account in the names of the advocates for the respective parties be and is hereby varied.vi.Consequently, the deposit of Kes.2, 500, 000/= Only, hereof shall now be deposited with the Deputy Registrar of the Environment and Land court within the timelines ascribed in clause [iii] hereof.vii.Costs of the Application shall abide the outcome of the suit.

79. It is so ordered.

DATED, SIGNED AND DELIVERED ON THE 16TH DAY OF JANUARY 2025OGUTTU MBOYAJUDGE.In the presence of:Benson – Court Assistant.Mr. Brian Mwenda h/b for Dr. Gibson Kamau Kuria SC for the Plaintiffs/RespondentsMr. Cecil Miller and Ms. Kimanthi for the Defendant/Applicant