REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT FAMILY APPEAL NO. E001 OF 2026
ANNA MUTINDA CHELI.....................................................................…………APPELLANT
VERSUS
HANNAH MBITHE KIOKO.....................................................…………1 ST RESPONDENT
JUSTINA KALUWA JACKSON..............................................................2 ND RESPONDENT
RULING
1. The appellant/applicant herein has filed before this Court a Notice of Motion dated 3 rd August 2024 seeking orders that:
a. There be stay of proceedings in PMC ELC Case No. E030 of 2025 pending at the Kwale Magistrates court pending the hearing and determination of an appeal.
b. An order of injunction restraining the respondents by themselves, their agents, servants, employees, proxies or assigns from selling, interfering, alienating, transferring and/or in any manner from dealing with the parcel of land known as Kwale/Gandini/39 measuring 7.42 Ha or thereabouts pending the hearing and determination of the appeal filed herein
2. The application is filed under Order 42 Rule 6 of the Civil Procedure Rules. The grounds in support of the application are laid out on the face therefore and expounded in the supporting affidavit sworn on 8 th April 2026 by Anna Mutinda Cheli, the applicant. The grounds can be summarized as follows. The applicant/appellant claims to be a widow of one Samuel Mutinda Kyeli (Deceased) and the respondents as step-daughters of the said deceased from different wives. The applicant alleges that the respondents obtained letters of administration in Kwale Succession Cause No. E050 of 2025 over the deceased’s property and particularly land parcel No. Kwale/Gandini/39 without involving her yet it is her residence and in actual occupation thereof even during the lifeitne of the deceased. They subsequently sued to evict her in Kwale Magistrates Court PMELC No. E030 of 2025 from the land which was the only asset of the estate of the deceased and on which she resides with her children and are therefore in actual occupation.
3. The applicant filed summons for revocation of the grant issued to the respondents but the same were dismissed. She has therefore filed the appeal herein against the order of dismissal. She therefore prays that the proceedings in PMELC No. E030 of 2025 be stayed pending determination of the appeal. She deposes that the 1 st respondent has been taking prospective buyers to the property for purchase.
4. In response the respondents filed a replying affidavit sworn on 20 th April 2026 by Hannah Mbithe Kioko, the 1 st respondent on her own behalf and that of the 2 nd respondent.
5. She deposes that Order 42 Rule 6 of the Civil Procedure Rules deals only with stay of execution but not stay of proceedings or injunction in land matters. Further that this court lacks jurisdiction to handle environment and land matters. That the proceedings sought to be stayed in ELC Case No. E030 of 2025 are in respect of an environment and land court case. Furthermore, the appeal herein arises from a succession cause No. E050 of 2022 and therefore this court lacks jurisdiction to stay proceedings in ELC E030 of 2025.
6. It is the 1 st respondent’s case that the land parcel No. Kwale/Gandini/39 is her property and it gave rise to a claim of a land dispute. She has annexed to her supporting affidavit a copy of an official search for the said property. Further that the applicant has not produced any evidence such as a certificate of marriage to support her claim that she is a wife of the deceased. Otherwise she is a trespasser upon the subject property.
7. The 1 st respondent deposes that the applicant should move to expeditiously have the appeal herein finalized and not to enjoy injunctive orders over land that does not belong to her.
8. The application was disposed of by way of written submissions.
9. The applicant argued the application on the basis that she had satisfied the conditions for grant of an order of stay of proceedings.
10. On the issue of jurisdiction, the applicant submits that the appeal is over the decision of the magistrate’s court failing to revoke the grant issued to the respondents and not over the ownership of the land and therefore this court has jurisdiction to stay the proceedings in the ELC matter.
11. The applicants did not make any submissions on the prayer for injunction. I take it that the same has been abandoned. In any case, it is doubtful that this court has any power to issue an order of temporary injunction on its appellte jurisdiction when the issue was not subject of the trial court.
12. This issue was considered in the case of Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR) by the Court of Appeal when it stated thus:
“Does this power to order a stay of execution include a power, in a proper case, to order the issue of a temporary injunction if it is considered necessary to do so, to give efficacy to an order for stay? There seems to be no East African authority directly in point. The only power vested in the High Court to issue a temporary injunction is to be found in order XXXIX, rules 1 and 2. Rule 2 is not relevant, and rule 1 limits the power of the High Court “until disposal of the suit or until further orders.” Mr Wako has submitted that the Court of Appeal has, by necessary analogy, a corresponding power to issue a temporary injunction pending disposal of an appeal. I am not persuaded by this argument. Order XXXIX, rule 1, confers powers on the High Court in its original, and not its appellate, jurisdiction. The High Court has no specific power to issue a temporary injunction in connection with an order for stay of execution of a decree or order which is the subject of an appeal to the High Court.”
13. Therefore, even if the same had been argued, it would not have been granted.
14. The respondent on their part submit that the applicant has failed to satisfy the conditions for grant of an order for stay of proceedings. However, in the submissions, learned counsel focused on the issue of lack of jurisdiction of this court to determine the issue of stay and not the requirements under Order 42 Rule 6.
15. I have considered the application herein, the responses thereto and the submissions by the parties.
16. The applicant’s prayer is for an order of stay of proceedings under Order 42 Rule 6.
17. Stay of proceedings pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding 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.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
18. From the foregoing provision of the law, the three conditions to be satisfied for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
19. The issue for determination is whether the applicant herein has offered sufficient reasons to warrant this court to exercise its discretion to stay the proceedings in the ELC suit pending before the trial court. This is not a straight forward matter given that the appeal herein is from the succession cause while the order of stay of proceedings is sought in a matter that has not been appealed from.
20. Learned counsel for the respondent submits quoting Article 162(2) of the constitution and section 13 of the Environment and Land Court Act (Cap. 8D) on the jurisdiction of the ELC that this court has no jurisdiction to order a stay of proceedings in the ELC matter before the magistrate’s court.
21. With respect, I think learned counsel is mixing up the issues herein. This court is not called upon to determine any issue in the ELC matter pending before the magistrate’s court. What this court needs to determine is whether the proceedings before the magistrate’s Environment and Land Case should proceed. In doing so, this court needs only to determine whether the applicant has shown sufficient cause for grant of the said orders pending determination of the appeal filed herein. Save to find that this court has jurisdiction to consider the application. This court will not delve into the merit or otherwise of the case whose proceedings are sought to be stayed. In any case, there is no appeal from that case to this court.
22. Perhaps the proper course would have been for the appellant to approach the trial court in the ELC matter to stay its own proceedings. However, I do not find any appropriate Rule under the CPR that would properly apply to such an application. This court would therefore have to revert to its inherent jurisdiction under section 63(e) CPC and the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, that is, to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act which the courts are enjoined to give effect.
23. The requirements for stay of proceedings are different from those of stay of execution. There is guidance on this difference in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated as follows:
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously ” (emphasis added)
See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
24. The appellant/applicant’s main reasons for seeking stay of proceedings in the ELC suit pending before the magistrate’s court is that the subject of that suit land parcel No. Kwale/Gandini/39, is also the subject of the appeal herein as forming the estate of the deceased whom she is claiming was her husband. It is her case that she was unfairly kept out of the succession proceedings leading to the grant of letters of administration. The issue of whether she was entitled to participate in the proceedings as a spouse of the deceased is at the heart of the appeal herein as it was before the succession court.
25. I have looked at the grounds of appeal and I think there is an arguable point there, on whether or not she was entitled to participate in the succession cause. In this case, unlike what the learned author in Halsbury’s Laws of England above was alluding to, the proceedings are not to be stayed in order to consider the merits of the suit, in the sense of whether the proceedings before the trial court are frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. It is for this court to consider whether if the trial court is left to go on with the trial of the ELC matter prejudice will be occasioned to either of the parties. Indeed, if that case goes on and is determined before the appeal herein, either way, the decision in the appeal will have an impact on that decision and the proceedings as a whole.
26. There is no doubt that the appeal herein may inevitably delay the determination of the ELC case before the trial court. However, as deposed and submitted by the respondent herein, if the appellant was to expedite the hearing in the appeal herein, the delay will not be prolonged. I note that the appellant has already filed her record of appeal and what remains is for this court to issue directions on the disposal of the appeal.
27. Considering that making a proper and informed decision by a court is at the core of every trial, I find that a little delay in seeking clarity on the issue of whether or not the applicant was entitled to be part of the succession proceedings is worth the delay.
28. Consequently, this court finds that the applicant’s notice of motion dated 8 th April 2026 has merit and the same is allowed. The proceedings before the Kwale Magistrate’s Court in PM ELC No. E030 of 2025 are hereby stayed pending the hearing and determination of the appeal herein.
29. I make no orders for costs.
30. Orders accordingly.
31. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 31 st day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Omboga (Ms) for the Applicant/Appellant.
Rono for the Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
kwale HCCC No. E009/20247/stay of proceedings
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT FAMILY APPEAL NO. E001 OF 2026
ANNA MUTINDA CHELI.....................................................................…………APPELLANT
VERSUS
HANNAH MBITHE KIOKO.....................................................…………1 ST RESPONDENT
JUSTINA KALUWA JACKSON..............................................................2 ND RESPONDENT
RULING
1. The appellant/applicant herein has filed before this Court a Notice of Motion dated 3 rd August 2024 seeking orders that:
a. There be stay of proceedings in PMC ELC Case No. E030 of 2025 pending at the Kwale Magistrates court pending the hearing and determination of an appeal.
b. An order of injunction restraining the respondents by themselves, their agents, servants, employees, proxies or assigns from selling, interfering, alienating, transferring and/or in any manner from dealing with the parcel of land known as Kwale/Gandini/39 measuring 7.42 Ha or thereabouts pending the hearing and determination of the appeal filed herein
2. The application is filed under Order 42 Rule 6 of the Civil Procedure Rules. The grounds in support of the application are laid out on the face therefore and expounded in the supporting affidavit sworn on 8 th April 2026 by Anna Mutinda Cheli, the applicant. The grounds can be summarized as follows. The applicant/appellant claims to be a widow of one Samuel Mutinda Kyeli (Deceased) and the respondents as step-daughters of the said deceased from different wives. The applicant alleges that the respondents obtained letters of administration in Kwale Succession Cause No. E050 of 2025 over the deceased’s property and particularly land parcel No. Kwale/Gandini/39 without involving her yet it is her residence and in actual occupation thereof even during the lifeitne of the deceased. They subsequently sued to evict her in Kwale Magistrates Court PMELC No. E030 of 2025 from the land which was the only asset of the estate of the deceased and on which she resides with her children and are therefore in actual occupation.
3. The applicant filed summons for revocation of the grant issued to the respondents but the same were dismissed. She has therefore filed the appeal herein against the order of dismissal. She therefore prays that the proceedings in PMELC No. E030 of 2025 be stayed pending determination of the appeal. She deposes that the 1 st respondent has been taking prospective buyers to the property for purchase.
4. In response the respondents filed a replying affidavit sworn on 20 th April 2026 by Hannah Mbithe Kioko, the 1 st respondent on her own behalf and that of the 2 nd respondent.
5. She deposes that Order 42 Rule 6 of the Civil Procedure Rules deals only with stay of execution but not stay of proceedings or injunction in land matters. Further that this court lacks jurisdiction to handle environment and land matters. That the proceedings sought to be stayed in ELC Case No. E030 of 2025 are in respect of an environment and land court case. Furthermore, the appeal herein arises from a succession cause No. E050 of 2022 and therefore this court lacks jurisdiction to stay proceedings in ELC E030 of 2025.
6. It is the 1 st respondent’s case that the land parcel No. Kwale/Gandini/39 is her property and it gave rise to a claim of a land dispute. She has annexed to her supporting affidavit a copy of an official search for the said property. Further that the applicant has not produced any evidence such as a certificate of marriage to support her claim that she is a wife of the deceased. Otherwise she is a trespasser upon the subject property.
7. The 1 st respondent deposes that the applicant should move to expeditiously have the appeal herein finalized and not to enjoy injunctive orders over land that does not belong to her.
8. The application was disposed of by way of written submissions.
9. The applicant argued the application on the basis that she had satisfied the conditions for grant of an order of stay of proceedings.
10. On the issue of jurisdiction, the applicant submits that the appeal is over the decision of the magistrate’s court failing to revoke the grant issued to the respondents and not over the ownership of the land and therefore this court has jurisdiction to stay the proceedings in the ELC matter.
11. The applicants did not make any submissions on the prayer for injunction. I take it that the same has been abandoned. In any case, it is doubtful that this court has any power to issue an order of temporary injunction on its appellte jurisdiction when the issue was not subject of the trial court.
12. This issue was considered in the case of Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR) by the Court of Appeal when it stated thus:
“Does this power to order a stay of execution include a power, in a proper case, to order the issue of a temporary injunction if it is considered necessary to do so, to give efficacy to an order for stay? There seems to be no East African authority directly in point. The only power vested in the High Court to issue a temporary injunction is to be found in order XXXIX, rules 1 and 2. Rule 2 is not relevant, and rule 1 limits the power of the High Court “until disposal of the suit or until further orders.” Mr Wako has submitted that the Court of Appeal has, by necessary analogy, a corresponding power to issue a temporary injunction pending disposal of an appeal. I am not persuaded by this argument. Order XXXIX, rule 1, confers powers on the High Court in its original, and not its appellate, jurisdiction. The High Court has no specific power to issue a temporary injunction in connection with an order for stay of execution of a decree or order which is the subject of an appeal to the High Court.”
13. Therefore, even if the same had been argued, it would not have been granted.
14. The respondent on their part submit that the applicant has failed to satisfy the conditions for grant of an order for stay of proceedings. However, in the submissions, learned counsel focused on the issue of lack of jurisdiction of this court to determine the issue of stay and not the requirements under Order 42 Rule 6.
15. I have considered the application herein, the responses thereto and the submissions by the parties.
16. The applicant’s prayer is for an order of stay of proceedings under Order 42 Rule 6.
17. Stay of proceedings pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding 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.
(2) No order for stay of execution shall be made under subrule (1) unless –
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
18. From the foregoing provision of the law, the three conditions to be satisfied for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is granted.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance of the decree.
19. The issue for determination is whether the applicant herein has offered sufficient reasons to warrant this court to exercise its discretion to stay the proceedings in the ELC suit pending before the trial court. This is not a straight forward matter given that the appeal herein is from the succession cause while the order of stay of proceedings is sought in a matter that has not been appealed from.
20. Learned counsel for the respondent submits quoting Article 162(2) of the constitution and section 13 of the Environment and Land Court Act (Cap. 8D) on the jurisdiction of the ELC that this court has no jurisdiction to order a stay of proceedings in the ELC matter before the magistrate’s court.
21. With respect, I think learned counsel is mixing up the issues herein. This court is not called upon to determine any issue in the ELC matter pending before the magistrate’s court. What this court needs to determine is whether the proceedings before the magistrate’s Environment and Land Case should proceed. In doing so, this court needs only to determine whether the applicant has shown sufficient cause for grant of the said orders pending determination of the appeal filed herein. Save to find that this court has jurisdiction to consider the application. This court will not delve into the merit or otherwise of the case whose proceedings are sought to be stayed. In any case, there is no appeal from that case to this court.
22. Perhaps the proper course would have been for the appellant to approach the trial court in the ELC matter to stay its own proceedings. However, I do not find any appropriate Rule under the CPR that would properly apply to such an application. This court would therefore have to revert to its inherent jurisdiction under section 63(e) CPC and the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, that is, to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act which the courts are enjoined to give effect.
23. The requirements for stay of proceedings are different from those of stay of execution. There is guidance on this difference in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated as follows:
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously ” (emphasis added)
See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
24. The appellant/applicant’s main reasons for seeking stay of proceedings in the ELC suit pending before the magistrate’s court is that the subject of that suit land parcel No. Kwale/Gandini/39, is also the subject of the appeal herein as forming the estate of the deceased whom she is claiming was her husband. It is her case that she was unfairly kept out of the succession proceedings leading to the grant of letters of administration. The issue of whether she was entitled to participate in the proceedings as a spouse of the deceased is at the heart of the appeal herein as it was before the succession court.
25. I have looked at the grounds of appeal and I think there is an arguable point there, on whether or not she was entitled to participate in the succession cause. In this case, unlike what the learned author in Halsbury’s Laws of England above was alluding to, the proceedings are not to be stayed in order to consider the merits of the suit, in the sense of whether the proceedings before the trial court are frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. It is for this court to consider whether if the trial court is left to go on with the trial of the ELC matter prejudice will be occasioned to either of the parties. Indeed, if that case goes on and is determined before the appeal herein, either way, the decision in the appeal will have an impact on that decision and the proceedings as a whole.
26. There is no doubt that the appeal herein may inevitably delay the determination of the ELC case before the trial court. However, as deposed and submitted by the respondent herein, if the appellant was to expedite the hearing in the appeal herein, the delay will not be prolonged. I note that the appellant has already filed her record of appeal and what remains is for this court to issue directions on the disposal of the appeal.
27. Considering that making a proper and informed decision by a court is at the core of every trial, I find that a little delay in seeking clarity on the issue of whether or not the applicant was entitled to be part of the succession proceedings is worth the delay.
28. Consequently, this court finds that the applicant’s notice of motion dated 8 th April 2026 has merit and the same is allowed. The proceedings before the Kwale Magistrate’s Court in PM ELC No. E030 of 2025 are hereby stayed pending the hearing and determination of the appeal herein.
29. I make no orders for costs.
30. Orders accordingly.
31. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 31 st day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Omboga (Ms) for the Applicant/Appellant.
Rono for the Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
kwale HCCC No. E009/20247/stay of proceedings