1. The appellant has moved the Court by an application dated 16th December 2025 for the
following orders:
a) Spent.
b) THAT the judgment scheduled for delivery on 12th February 2026 in Mombasa CMCC NO.
E038 of 2023 between Bank of Africa Ltd. v. Abubaker Bwana Heri be arrested and/or pending
the inter partes hearing and determination of this application.
c) THAT there be a stay of proceedings in Mombasa CMCC NO. E038 of 2023 between Bank
of Africa Ltd. v. Abubaker Bwana Heri pending the inter partes hearing and determination of this
appeal.
d) Costs of this application.
e) Any other relief the Court deems just and fair to grant.
2. The application is founded on Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010
and sections 1A, 1B and 3A of the Civil Procedure Act. In a supporting affidavit sworn on the
same date, the appellant stated that on 10th February 2025 the trial court closed the appellant’s
defence before he was allowed to give evidence in support of his case. He applied to re-open
his defence but, on 22nd October 2025, the trial court dismissed the application and fixed the
suit for judgment on 12th February 2026. The appellant challenges the said ruling, asserts
denial of his constitutional right to a fair hearing, and seeks to be heard before judgment is
delivered. He avers he has a good defence with a likelihood of success and that the respondent
will not suffer prejudice if the application is granted.
3. The respondent filed a replying affidavit sworn by Duncan Wechuli on 9th February 2026. Mr
Wechuli, Senior Recoveries Officer, contended the appellant has not shown an arguable appeal
to warrant the relief sought, nor any genuine intention to prosecute the intended appeal — for
example, the appellant has not requested typed proceedings to enable preparation of the record
of appeal. He further averred that the appellant has not ceased servicing the loan facility and
that a stay of proceedings is a drastic and exceptional remedy granted sparingly; no exceptional
circumstances have been demonstrated.
4. Mr Wechuli also argued the appellant has not shown irreparable prejudice and that the
respondent would suffer prejudice because the loan facility would continue to accrue interest
while the security remains unrealized. He alleged the appellant has come to court with unclean
hands, having repeatedly used procedural maneuvers to delay the suit, and submitted the
balance of convenience favors allowing the trial to proceed.
5. The issue for determination is whether this application has merit.
6. After perusing the trial record, the submissions and the authorities cited, the Court finds as
follows:
a) The appellant seeks two principal orders: (i) arrest of the pending judgment (the Court has
confirmed from the Judiciary Case Tracking System that the slated judgment date is 16th April
2026), and (ii) a stay of proceedings. The appellant challenges a ruling alleged to have deprived
him of the constitutional right to fair hearing and invokes this Court’s supervisory jurisdiction
under Article 165(6) read with sub-article (7) of the Constitution.
b) Supervisory jurisdiction may be exercised by way of judicial review, review or appeal — this
matter is at the appeal stage. A stay of proceedings would operate to arrest judgment. Although
the appeal is not one of those listed in Order 43 rule 1 as of right, at this stage the Court will
give latitude to prevent injustice while the appeal is pending. The Court will not determine the
substantive merits of the appeal when exercising its discretion on this application. See Edith
Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR).
c) On stay of proceedings under Order 42 rule 6(1) and (2), the Court notes the guidance in
Kenya Railways Corporation v Jihan Freighters Limited [2026] KECA 47 (KLR), which cited
Kenya Wildlife Service v James Mutembei [2019] eKLR, stating that a stay of proceedings is a
grave judicial action and the test is stringent. Halsbury’s Laws (4th Ed., Vol. 37, pp. 330, 332)
similarly emphasizes that a stay is exceptional and should be granted sparingly, where
proceedings are frivolous, vexatious, manifestly groundless, or where the plaintiff could not
possibly succeed.
d) Other authorities, including Global Tours & Travels Ltd (Nairobi Winding Up Cause No. 43
of 2000, Ringera J.), establish that the exercise is discretionary and should be guided by the
interests of justice, weighing factors such as expeditious disposal, prima facie merits (whether
the intended appeal is arguable), efficient use of judicial time, and whether the application was
brought expeditiously.
e) In the present case, the appellant asserts a violation of his constitutional right to give
evidence. The respondent alleges abuse of process and delay. Having examined the record, the
Court finds it undesirable to risk the trial court delivering judgment and thereafter entertaining
applications to set aside or appeals based on the same complaint. Reliance Bank Ltd v Norlake
Investments Ltd [2002] E.A. 227 supports granting relief where refusing a stay would cause
disproportionate hardship to the applicant compared to any prejudice to the respondent.
f) The maxim fiat justitia ruat caelum (let justice be done though the heavens fall) applies. The
Court is satisfied that justice requires granting appropriate interim relief.
7. Orders
The application is GRANTED in part as follows:
a) THAT there be a stay of proceedings in Mombasa CMCC NO. E038 of 2023 between
Bank of Africa Ltd. v. Abubaker Bwana Heri pending the hearing and determination of this
appeal.
b) The Deputy Registrar is directed to avail the handwritten proceedings and/or upload them
onto the Court’s Case Tracking System (CTS) within 14 days to expedite of appeal.
c) Costs of this application shall be in the appeal.
8. It is so ordered.
Dated, signed, and delivered in Open Court / online through MS Teams, this 25th_____ day of
_February____ 2026.
following orders:
a) Spent.
b) THAT the judgment scheduled for delivery on 12th February 2026 in Mombasa CMCC NO.
E038 of 2023 between Bank of Africa Ltd. v. Abubaker Bwana Heri be arrested and/or pending
the inter partes hearing and determination of this application.
c) THAT there be a stay of proceedings in Mombasa CMCC NO. E038 of 2023 between Bank
of Africa Ltd. v. Abubaker Bwana Heri pending the inter partes hearing and determination of this
appeal.
d) Costs of this application.
e) Any other relief the Court deems just and fair to grant.
2. The application is founded on Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010
and sections 1A, 1B and 3A of the Civil Procedure Act. In a supporting affidavit sworn on the
same date, the appellant stated that on 10th February 2025 the trial court closed the appellant’s
defence before he was allowed to give evidence in support of his case. He applied to re-open
his defence but, on 22nd October 2025, the trial court dismissed the application and fixed the
suit for judgment on 12th February 2026. The appellant challenges the said ruling, asserts
denial of his constitutional right to a fair hearing, and seeks to be heard before judgment is
delivered. He avers he has a good defence with a likelihood of success and that the respondent
will not suffer prejudice if the application is granted.
3. The respondent filed a replying affidavit sworn by Duncan Wechuli on 9th February 2026. Mr
Wechuli, Senior Recoveries Officer, contended the appellant has not shown an arguable appeal
to warrant the relief sought, nor any genuine intention to prosecute the intended appeal — for
example, the appellant has not requested typed proceedings to enable preparation of the record
of appeal. He further averred that the appellant has not ceased servicing the loan facility and
that a stay of proceedings is a drastic and exceptional remedy granted sparingly; no exceptional
circumstances have been demonstrated.
4. Mr Wechuli also argued the appellant has not shown irreparable prejudice and that the
respondent would suffer prejudice because the loan facility would continue to accrue interest
while the security remains unrealized. He alleged the appellant has come to court with unclean
hands, having repeatedly used procedural maneuvers to delay the suit, and submitted the
balance of convenience favors allowing the trial to proceed.
5. The issue for determination is whether this application has merit.
6. After perusing the trial record, the submissions and the authorities cited, the Court finds as
follows:
a) The appellant seeks two principal orders: (i) arrest of the pending judgment (the Court has
confirmed from the Judiciary Case Tracking System that the slated judgment date is 16th April
2026), and (ii) a stay of proceedings. The appellant challenges a ruling alleged to have deprived
him of the constitutional right to fair hearing and invokes this Court’s supervisory jurisdiction
under Article 165(6) read with sub-article (7) of the Constitution.
b) Supervisory jurisdiction may be exercised by way of judicial review, review or appeal — this
matter is at the appeal stage. A stay of proceedings would operate to arrest judgment. Although
the appeal is not one of those listed in Order 43 rule 1 as of right, at this stage the Court will
give latitude to prevent injustice while the appeal is pending. The Court will not determine the
substantive merits of the appeal when exercising its discretion on this application. See Edith
Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR).
c) On stay of proceedings under Order 42 rule 6(1) and (2), the Court notes the guidance in
Kenya Railways Corporation v Jihan Freighters Limited [2026] KECA 47 (KLR), which cited
Kenya Wildlife Service v James Mutembei [2019] eKLR, stating that a stay of proceedings is a
grave judicial action and the test is stringent. Halsbury’s Laws (4th Ed., Vol. 37, pp. 330, 332)
similarly emphasizes that a stay is exceptional and should be granted sparingly, where
proceedings are frivolous, vexatious, manifestly groundless, or where the plaintiff could not
possibly succeed.
d) Other authorities, including Global Tours & Travels Ltd (Nairobi Winding Up Cause No. 43
of 2000, Ringera J.), establish that the exercise is discretionary and should be guided by the
interests of justice, weighing factors such as expeditious disposal, prima facie merits (whether
the intended appeal is arguable), efficient use of judicial time, and whether the application was
brought expeditiously.
e) In the present case, the appellant asserts a violation of his constitutional right to give
evidence. The respondent alleges abuse of process and delay. Having examined the record, the
Court finds it undesirable to risk the trial court delivering judgment and thereafter entertaining
applications to set aside or appeals based on the same complaint. Reliance Bank Ltd v Norlake
Investments Ltd [2002] E.A. 227 supports granting relief where refusing a stay would cause
disproportionate hardship to the applicant compared to any prejudice to the respondent.
f) The maxim fiat justitia ruat caelum (let justice be done though the heavens fall) applies. The
Court is satisfied that justice requires granting appropriate interim relief.
7. Orders
The application is GRANTED in part as follows:
a) THAT there be a stay of proceedings in Mombasa CMCC NO. E038 of 2023 between
Bank of Africa Ltd. v. Abubaker Bwana Heri pending the hearing and determination of this
appeal.
b) The Deputy Registrar is directed to avail the handwritten proceedings and/or upload them
onto the Court’s Case Tracking System (CTS) within 14 days to expedite of appeal.
c) Costs of this application shall be in the appeal.
8. It is so ordered.
Dated, signed, and delivered in Open Court / online through MS Teams, this 25th_____ day of
_February____ 2026.