' Background and Introduction
1. I have considered the appellant’s application dated 21st February 2025 seeking to stay the proceedings before the trial court in MCCC E3815 of 2023 pending hearing and determination of the present appeal. The contested Ruling, which is the subject of the appeal, is dated 30th January 2025. In that Ruling, the Court dismissed a preliminary objection raised by the appellant and affirmed its jurisdiction to hear and determine the matter.
2. The application before me is supported by an affidavit sworn by the applicant on the same day. It is opposed by a replying affidavit sworn by the respondent on 19th May 2025. I have carefully considered both affidavits, along with the written submissions submitted by the parties.
Analysis and Determination
3. The relief of stay of proceedings pending an appeal is provided for under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010. Judicial authorities have established guiding principles for applications seeking such a stay. For instance, in the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, the court stated as follows:
“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.
4. The Court of Appeal in Kenya Wildlife Service v James Mutembei Civil Appeal No. 40 OF 2018 warned about the serious implications and potential consequences of an order for stay of proceedings, in the following words:
“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.”
5. From the above pronouncements, it is clear that an order for stay of proceedings is ultimately a discretionary remedy granted by the courts, and its issuance is based on considerations of justice and fairness. The court exercises this discretion cautiously, recognizing the significant impact such an order can have on a litigant’s right to an expeditious and just resolution of their case. Because a stay can cause delays and potentially deny a party the immediate pursuit of their claim or defense, courts are generally reluctant to grant it unless exceptional circumstances merit such intervention.
6. In the present case, while the applicant asserts that the appeal raises arguable points of law for determination, he has not provided the Court with a draft Memorandum of Appeal outlining these specific grounds. Consequently, it is unclear whether the points raised meet the threshold necessary to establish that the appeal is arguable.
7. Even if I were to discern these grounds from the filed affidavit, it is not denied that the application was filed after the hearing in the lower court had commenced, and the respondent, who is the plaintiff in the lower court, had already given evidence, undergone cross-examination, and closed his case. Since the suit is now at a late stage of hearing, I am inclined to favor the continuation of the proceedings and urge that the hearing be allowed to proceed to its logical conclusion.
8. Finally, the applicant has not substantiated their assertion that they would suffer substantial loss if the proceedings before the trial court are not stayed. The applicant has failed to demonstrate how their rights or interests would be irreparably harmed or how they would incur significant damage if the case continues and the appeal, if necessary, is determined after the hearing and determination of the matter at the trial court. Considering the subject matter of the claim, the applicant has not shown that a subsequent outcome would be rendered meaningless or nugatory, nor that the refusal to grant a stay would cause them irreparable harm that cannot be addressed through an award of damages.
Disposition
9. Accordingly, the application dated 21st February 2025 is dismissed with costs to await the outcome of the appeal.
'
1. I have considered the appellant’s application dated 21st February 2025 seeking to stay the proceedings before the trial court in MCCC E3815 of 2023 pending hearing and determination of the present appeal. The contested Ruling, which is the subject of the appeal, is dated 30th January 2025. In that Ruling, the Court dismissed a preliminary objection raised by the appellant and affirmed its jurisdiction to hear and determine the matter.
2. The application before me is supported by an affidavit sworn by the applicant on the same day. It is opposed by a replying affidavit sworn by the respondent on 19th May 2025. I have carefully considered both affidavits, along with the written submissions submitted by the parties.
Analysis and Determination
3. The relief of stay of proceedings pending an appeal is provided for under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010. Judicial authorities have established guiding principles for applications seeking such a stay. For instance, in the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, the court stated as follows:
“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.
4. The Court of Appeal in Kenya Wildlife Service v James Mutembei Civil Appeal No. 40 OF 2018 warned about the serious implications and potential consequences of an order for stay of proceedings, in the following words:
“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.”
5. From the above pronouncements, it is clear that an order for stay of proceedings is ultimately a discretionary remedy granted by the courts, and its issuance is based on considerations of justice and fairness. The court exercises this discretion cautiously, recognizing the significant impact such an order can have on a litigant’s right to an expeditious and just resolution of their case. Because a stay can cause delays and potentially deny a party the immediate pursuit of their claim or defense, courts are generally reluctant to grant it unless exceptional circumstances merit such intervention.
6. In the present case, while the applicant asserts that the appeal raises arguable points of law for determination, he has not provided the Court with a draft Memorandum of Appeal outlining these specific grounds. Consequently, it is unclear whether the points raised meet the threshold necessary to establish that the appeal is arguable.
7. Even if I were to discern these grounds from the filed affidavit, it is not denied that the application was filed after the hearing in the lower court had commenced, and the respondent, who is the plaintiff in the lower court, had already given evidence, undergone cross-examination, and closed his case. Since the suit is now at a late stage of hearing, I am inclined to favor the continuation of the proceedings and urge that the hearing be allowed to proceed to its logical conclusion.
8. Finally, the applicant has not substantiated their assertion that they would suffer substantial loss if the proceedings before the trial court are not stayed. The applicant has failed to demonstrate how their rights or interests would be irreparably harmed or how they would incur significant damage if the case continues and the appeal, if necessary, is determined after the hearing and determination of the matter at the trial court. Considering the subject matter of the claim, the applicant has not shown that a subsequent outcome would be rendered meaningless or nugatory, nor that the refusal to grant a stay would cause them irreparable harm that cannot be addressed through an award of damages.
Disposition
9. Accordingly, the application dated 21st February 2025 is dismissed with costs to await the outcome of the appeal.
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