1. The appellant raised a preliminary objection in the Court below, challenging the Court's jurisdiction on the ground that the accident giving rise to the suit occurred in Tanzania and that the Court lacked jurisdiction to hear and determine the suit. After hearing the objection on the merits, the Court below dismissed the preliminary objection.
2. Being aggrieved, the appellant appealed to this Court. The appeal seeks to have this Court review and set aside the ruling delivered on 30th May 2025, to substitute it with an order upholding the preliminary objection dated 14th October 2024, and to award costs to the appellant. The appellant subsequently filed a notice of motion application dated 12th January 2026 seeking to have the proceedings in the subordinate Court stayed pending the hearing and determination of the appeal.
3. The stay application was opposed by the respondent through a replying affidavit sworn on 21st January 2026. The deponent deposed that it hadn’t been shown that the application was merited.
4. I note that this is the second application for a stay of proceedings pending appeal. The previous application was filed in the Court below. The same was dismissed by the trial Court on 2nd December 2025. The said Court found that a stay of proceedings was a grave remedy that would seriously interrupt the trial process and could be issued only in exceptional circumstances.
5. Should this Court stay proceedings as prayed? As earlier indicated, the Court below, in exercise of its discretion, chose not to grant a stay of proceedings. If this Court were to issue an order staying proceedings, it would, in essence, be interfering with the said Court's exercise of its discretion. In Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its discretion is clearly wrong, because it acted on matters it should not have acted on, or because it failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
6. Whereas it is true that the exercise of my discretion in this application is independent and not an appeal against the decision of the lower Court, it is my view that I should nevertheless give due regard to the decision the learned magistrate made.
7. Courts do stay proceedings in appropriate cases. In the case of Global Touts and Travel Limited, Nairobi HC Winding Up Cause No. 43 of 2000, Ringera J. held that:
“As I understand the law, whether or not to grant a stay of proceedings 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 so, on what terms.”
8. It must be noted that a stay of proceedings is a grave judicial remedy that interferes with the trial process. Given its impact on the speedy determination of suits, and noting that Article 159(2)(b) of the Constitution of Kenya, 2010 calls on the courts to deliver justice without undue delay, I am of the view that the remedy should be granted sparingly.
9. In Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR), Joel Ngugi, J, as he then was, stated that:
“As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal, only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1, p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”
10. Has the appellant satisfied the above test? It would appear to me that it has. The accident occurred in Tanzania, outside the territory of the Republic of Kenya. Whether the Kenyan Courts have jurisdiction to hear such matters is arguable. It is also arguable whether sections 14 and 15 of the Civil Procedure Act confer jurisdiction on the Court below. These are the issues that this Court, differently constituted, will have to determine.
11. In the case of Rage Mohammed Ali v Abdullahim Maasai [2005] KEHC 2027 (KLR), Alnashir Visram J, as he then was, held that:
“This is a simple and straightforward case of a motor vehicle accident that took place in a foreign country outside the limits of the Jurisdiction of our courts in Kenya. The learned Magistrate was, therefore, right in disallowing this claim. There is nothing the Appellant has said in his appeal before this Court to persuade it otherwise. His Counsel provided no authorities to the Court even after seeking, and being allowed extra time to submit the same.”
12. The above decision is persuasive as it was made by a judge with concurrent jurisdiction. What it demonstrates is that the question of whether the court below has jurisdiction to determine the matter is one that this Court should consider before the Court below takes further steps.
13. As stated in the case of the owners of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), where a Court has no jurisdiction it shouldn’t take any further steps. In my view, and flowing from the said decision, where there is reasonable doubt as to the Court’s jurisdiction, the jurisdiction question should be determined first.
14. The upshot of the foregoing is that the notice of motion dated 12th January 2026 has merit. The same is allowed. Consequently:
i. The proceedings in the Court below are hereby stayed;
ii. Each party will bear its or her own costs.
15. It is so ordered.
Dated and signed in Nairobi, this 4th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. Being aggrieved, the appellant appealed to this Court. The appeal seeks to have this Court review and set aside the ruling delivered on 30th May 2025, to substitute it with an order upholding the preliminary objection dated 14th October 2024, and to award costs to the appellant. The appellant subsequently filed a notice of motion application dated 12th January 2026 seeking to have the proceedings in the subordinate Court stayed pending the hearing and determination of the appeal.
3. The stay application was opposed by the respondent through a replying affidavit sworn on 21st January 2026. The deponent deposed that it hadn’t been shown that the application was merited.
4. I note that this is the second application for a stay of proceedings pending appeal. The previous application was filed in the Court below. The same was dismissed by the trial Court on 2nd December 2025. The said Court found that a stay of proceedings was a grave remedy that would seriously interrupt the trial process and could be issued only in exceptional circumstances.
5. Should this Court stay proceedings as prayed? As earlier indicated, the Court below, in exercise of its discretion, chose not to grant a stay of proceedings. If this Court were to issue an order staying proceedings, it would, in essence, be interfering with the said Court's exercise of its discretion. In Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its discretion is clearly wrong, because it acted on matters it should not have acted on, or because it failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
6. Whereas it is true that the exercise of my discretion in this application is independent and not an appeal against the decision of the lower Court, it is my view that I should nevertheless give due regard to the decision the learned magistrate made.
7. Courts do stay proceedings in appropriate cases. In the case of Global Touts and Travel Limited, Nairobi HC Winding Up Cause No. 43 of 2000, Ringera J. held that:
“As I understand the law, whether or not to grant a stay of proceedings 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 so, on what terms.”
8. It must be noted that a stay of proceedings is a grave judicial remedy that interferes with the trial process. Given its impact on the speedy determination of suits, and noting that Article 159(2)(b) of the Constitution of Kenya, 2010 calls on the courts to deliver justice without undue delay, I am of the view that the remedy should be granted sparingly.
9. In Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR), Joel Ngugi, J, as he then was, stated that:
“As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal, only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1, p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”
10. Has the appellant satisfied the above test? It would appear to me that it has. The accident occurred in Tanzania, outside the territory of the Republic of Kenya. Whether the Kenyan Courts have jurisdiction to hear such matters is arguable. It is also arguable whether sections 14 and 15 of the Civil Procedure Act confer jurisdiction on the Court below. These are the issues that this Court, differently constituted, will have to determine.
11. In the case of Rage Mohammed Ali v Abdullahim Maasai [2005] KEHC 2027 (KLR), Alnashir Visram J, as he then was, held that:
“This is a simple and straightforward case of a motor vehicle accident that took place in a foreign country outside the limits of the Jurisdiction of our courts in Kenya. The learned Magistrate was, therefore, right in disallowing this claim. There is nothing the Appellant has said in his appeal before this Court to persuade it otherwise. His Counsel provided no authorities to the Court even after seeking, and being allowed extra time to submit the same.”
12. The above decision is persuasive as it was made by a judge with concurrent jurisdiction. What it demonstrates is that the question of whether the court below has jurisdiction to determine the matter is one that this Court should consider before the Court below takes further steps.
13. As stated in the case of the owners of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), where a Court has no jurisdiction it shouldn’t take any further steps. In my view, and flowing from the said decision, where there is reasonable doubt as to the Court’s jurisdiction, the jurisdiction question should be determined first.
14. The upshot of the foregoing is that the notice of motion dated 12th January 2026 has merit. The same is allowed. Consequently:
i. The proceedings in the Court below are hereby stayed;
ii. Each party will bear its or her own costs.
15. It is so ordered.
Dated and signed in Nairobi, this 4th day of May 2026. Delivered virtually through Microsoft TEAMS.