B
(Being an appeal from the Ruling of the learned Magistrate Hon Gathogo Sogomo delivered on 24 th October 2025 in the Chief Magistrate Court case no. MCCC/E938/2025 Mahmoud Khimji vs Beatrice L Mhangani)
1. By a Notice of Motion dated 10 th November 2025 brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 (1) of the Civil Procedure rules 2020 the appellant moved this court for ORDERS:
a) Spent
b) Spent
c) THAT pending the hearing and determination of the appeal filed herein against the ruling delivered on 24 th October 2025 the Court be pleased to stay the proceedings in Chief Magistrate Court case no. MCCC/E938/2025 Mahmoud Khimji vs Beatrice L. Mhangani
d) Costs of this application be provided for.
2. The application is propped by the grounds on its face and the affidavit of Beatrice L.Mhangani sworn on 10 th November 2025.
3. She states that on 24 th October 2025 the lower court delivered a ruling dismissing her application dated 21 st July 2025 which sought access to the suit premises Plot no. XVIII/107 for purposes of carrying out a valuation exercise. She is dissatisfied and has preferred an appeal against it. The appeal has high chances of success. That the proceedings before the trial court shall proceed on 27 th January 2026 when the matter will be mentioned for purposes of taking directions. That unless the proceedings are stayed the respondent may proceed to take further step in the matter, thereby rendering the intended appeal an exercise in futility.
4. The respondent filed a replying affidavit sworn by Mahmood Haiderali Khimji on 18 th November 2025. He states that the suit property was taken over by a third party who has invested heavily on new classrooms since 2023 when the respondent left.
5. That the issues before the trial court are not about the value of construction but basically an issue of breach of contract executed by the appellant herein. That the said valuation will add little or no value to the proceedings before the trial court thus the application dated 21 st July 2025 is an afterthought and a ploy to delay the hearing and determination of the main issues.
6. I have considered the application filed, the affidavit in support, the replying affidavit and the submissions on record. The issue for consideration is whether the application has merit and what orders this court should make.
7. The background to the application is that on 21 st July 2025 the appellant made an oral application before the trial court requesting to access the suit premises so as to conduct valuation exercise relating to his input in the suit property. On 24 th October 2025 the trial court dismissed his application and directed that the matter be mentioned on 27 th January 2026 for pre trials.
8. Being aggrieved by that ruling, the applicant filed a memorandum of appeal dated 10 th November 2025 and subsequently lodged the Notice of Motion under consideration seeking to stay the lower court proceedings pending the hearing and determination of the appeal herein.
9. Order 42 Rule 6 of the Civil Procedure Rules provides: -
“ORDER 42 - APPEALS
6. Stay in case of appeal [Order 42, rule 6]
(1) No appeal or second appeal shall operate as a stay of execution or proceedings 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.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
10. In the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others
[2019] eKLR , a 5-judge Bench of the High Court, after going through various decisions on the question of stay of proceedings, laid down the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court. See: Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986]eKLR; Global Tours & Travels Limited (Nairobi HC Winding Up Cause No 43 of 2000); David Morton Silverstein v Atsango Chesoni [2002] eKLR where the following six principles were laid down by the Court:
a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be
determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.
11. All these factors must be considered, in a given case, in the spirit concisely expressed in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330, 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 proceedings, beyond reasonable doubt, ought not to be allowed to continue”
12. Ringera J. in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No 43 of 2000) had this to say on this matter of stay of proceedings:
“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) .
13. In light of the above, it is clear that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a power which ought to be exercised sparingly and only in exceptional circumstances. The court will use this power where grave injustice might otherwise result or where justice might not by other means be attained. In deciding on whether to stay the proceedings in the lower court, this court also has regards to the salutary general rule that appeals are not entertained piecemeal.
14. In the present case, it is not possible to say that the preferred appeal is not arguable. The courts have held that an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the courts, one which is not frivolous.
15. The appeal in the instant matter relates to a party’s right to have all relevant and material evidence placed before the trial court to enable a just and fair determination of the dispute before the trial court. This is not a complex issue before this Court. If all the parties were to argue the appeal devoid of procedural delays, this court is capable of determining that issue expeditiously so as to put it to rest and let the parties ventilate their real grievances. It is an issue that for determination at the hearing of the appeal. The appeal is therefore arguable.
16. In the above foregoing, since the interlocutory appeal is not complex and the parties can be conditioned to expedite it, I find that it is in the interest of justice to allow stay of proceedings in the lower court file to pave way for this appeal since the lower court file has not made much progress, the record of appeal will be of less volumes thus easy to prepare.
17. I therefore allow the application by the appellant and stay the proceedings in Mombasa CMCC NO. E938/2025 – Mahmoud Khimji vs Beatrice L. Mhangani pending the hearing and determination of this appeal conditional upon the appellant filing and serving a complete record of appeal together with submissions within 30 days of today upon which the respondent will have 21 days of the date of service to file and serve written submissions and in default on the part of the appellant, the orders herein shall lapse and appeal deemed dismissed.
18. Mention on 4/2/2026 to confirm compliance and to fix a judgement date.
19. The costs of this application shall be in the main appeal.
20. I so order.
DELIVERED, DATED and SIGNED at MOMBASA on this 17th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
(Being an appeal from the Ruling of the learned Magistrate Hon Gathogo Sogomo delivered on 24 th October 2025 in the Chief Magistrate Court case no. MCCC/E938/2025 Mahmoud Khimji vs Beatrice L Mhangani)
1. By a Notice of Motion dated 10 th November 2025 brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 (1) of the Civil Procedure rules 2020 the appellant moved this court for ORDERS:
a) Spent
b) Spent
c) THAT pending the hearing and determination of the appeal filed herein against the ruling delivered on 24 th October 2025 the Court be pleased to stay the proceedings in Chief Magistrate Court case no. MCCC/E938/2025 Mahmoud Khimji vs Beatrice L. Mhangani
d) Costs of this application be provided for.
2. The application is propped by the grounds on its face and the affidavit of Beatrice L.Mhangani sworn on 10 th November 2025.
3. She states that on 24 th October 2025 the lower court delivered a ruling dismissing her application dated 21 st July 2025 which sought access to the suit premises Plot no. XVIII/107 for purposes of carrying out a valuation exercise. She is dissatisfied and has preferred an appeal against it. The appeal has high chances of success. That the proceedings before the trial court shall proceed on 27 th January 2026 when the matter will be mentioned for purposes of taking directions. That unless the proceedings are stayed the respondent may proceed to take further step in the matter, thereby rendering the intended appeal an exercise in futility.
4. The respondent filed a replying affidavit sworn by Mahmood Haiderali Khimji on 18 th November 2025. He states that the suit property was taken over by a third party who has invested heavily on new classrooms since 2023 when the respondent left.
5. That the issues before the trial court are not about the value of construction but basically an issue of breach of contract executed by the appellant herein. That the said valuation will add little or no value to the proceedings before the trial court thus the application dated 21 st July 2025 is an afterthought and a ploy to delay the hearing and determination of the main issues.
6. I have considered the application filed, the affidavit in support, the replying affidavit and the submissions on record. The issue for consideration is whether the application has merit and what orders this court should make.
7. The background to the application is that on 21 st July 2025 the appellant made an oral application before the trial court requesting to access the suit premises so as to conduct valuation exercise relating to his input in the suit property. On 24 th October 2025 the trial court dismissed his application and directed that the matter be mentioned on 27 th January 2026 for pre trials.
8. Being aggrieved by that ruling, the applicant filed a memorandum of appeal dated 10 th November 2025 and subsequently lodged the Notice of Motion under consideration seeking to stay the lower court proceedings pending the hearing and determination of the appeal herein.
9. Order 42 Rule 6 of the Civil Procedure Rules provides: -
“ORDER 42 - APPEALS
6. Stay in case of appeal [Order 42, rule 6]
(1) No appeal or second appeal shall operate as a stay of execution or proceedings 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.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
10. In the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others
[2019] eKLR , a 5-judge Bench of the High Court, after going through various decisions on the question of stay of proceedings, laid down the principles our Courts have established for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court. See: Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986]eKLR; Global Tours & Travels Limited (Nairobi HC Winding Up Cause No 43 of 2000); David Morton Silverstein v Atsango Chesoni [2002] eKLR where the following six principles were laid down by the Court:
a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be
determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.
11. All these factors must be considered, in a given case, in the spirit concisely expressed in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330, 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 proceedings, beyond reasonable doubt, ought not to be allowed to continue”
12. Ringera J. in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No 43 of 2000) had this to say on this matter of stay of proceedings:
“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) .
13. In light of the above, it is clear that the grant of a stay of proceedings pending the hearing of an interlocutory appeal in civil matters is a power which ought to be exercised sparingly and only in exceptional circumstances. The court will use this power where grave injustice might otherwise result or where justice might not by other means be attained. In deciding on whether to stay the proceedings in the lower court, this court also has regards to the salutary general rule that appeals are not entertained piecemeal.
14. In the present case, it is not possible to say that the preferred appeal is not arguable. The courts have held that an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the courts, one which is not frivolous.
15. The appeal in the instant matter relates to a party’s right to have all relevant and material evidence placed before the trial court to enable a just and fair determination of the dispute before the trial court. This is not a complex issue before this Court. If all the parties were to argue the appeal devoid of procedural delays, this court is capable of determining that issue expeditiously so as to put it to rest and let the parties ventilate their real grievances. It is an issue that for determination at the hearing of the appeal. The appeal is therefore arguable.
16. In the above foregoing, since the interlocutory appeal is not complex and the parties can be conditioned to expedite it, I find that it is in the interest of justice to allow stay of proceedings in the lower court file to pave way for this appeal since the lower court file has not made much progress, the record of appeal will be of less volumes thus easy to prepare.
17. I therefore allow the application by the appellant and stay the proceedings in Mombasa CMCC NO. E938/2025 – Mahmoud Khimji vs Beatrice L. Mhangani pending the hearing and determination of this appeal conditional upon the appellant filing and serving a complete record of appeal together with submissions within 30 days of today upon which the respondent will have 21 days of the date of service to file and serve written submissions and in default on the part of the appellant, the orders herein shall lapse and appeal deemed dismissed.
18. Mention on 4/2/2026 to confirm compliance and to fix a judgement date.
19. The costs of this application shall be in the main appeal.
20. I so order.
DELIVERED, DATED and SIGNED at MOMBASA on this 17th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-