The Applicants’ Case
The Applicants through Rama Hassan Chokwe have come to this court seeking orders that there be an immediate ex parte order of stay of all proceedings, hearings, and consequential orders in Mombasa Chief Magistrates Court, MCCELC No. E122 of 2023, Mombasa MCCELC No. E122 of 2023 SAID SOOD MOHAMED SAID SHIKELY VS RAMA HASSAN CHOKWE, MCELC NO. E201 of 2023 - SAID SOOD MOHAMED SAID SHIKELY VS HAMISI CHOICWE pending the hearing and determination of this Application inter partes.
That upon hearing this Application inter partes, this Honourable Court be pleased to order the consolidation of Mombasa ELCPET/E002/2024 (High Court)- HAMISI CHOKWE AND OTHERS VERSUS SAID SOOD SHIRLEY AND OTHERS, Mombasa MCCELC No. E122 of 2023 Said Sood Mohamed Said Shikely Vs Rama Hassan Chokwe, Mcelc/E201/2023 - Said Sood Mohamed Said Shikely VS Hamisi Chokwe for efficient disposal, avoidance of duplicity of suits, and prevention of conflicting judgments over the same subject matter.
THAT costs of this Application be in the cause.
The application is based on grounds that there are two parallel proceedings involving the same subject property and largely the same parties, namely: Mombasa ELCPET/E002/2024 (High Court Petition), filed by the Applicants challenging the constitutionality of the Respondent's actions over the Mgongeni property; Mombasa MCCELC No. E122 of 2023 (Lower Court suit), and MCELC/E201/2023 filed by the o Respondent against the Applicants.
The applicants contend that the doctrine of res sub judice, under Section 6 of the Civil Procedure Act, bars concurrent litigation over the same subject matter between the same parties in different courts, as it risks conflicting outcomes and amounts to abuse of process.
The applicants lament that despite the pendency of the High Court Petition, the Respondent has continued to prosecute MCCELC No. E122 of 2023, which is now listed for hearing before Hon. L.M. Mwamuye on 2nd October 2025, thereby creating a real danger of conflicting judgments and that the Respondent has previously irregularly obtained orders from the Chief Magistrates Court for assessment of rent matters which properly lie before the Rent Tribunal thereby engaging in forum shopping and undermining the judicial process.
According to the applicants, such irregular orders have been used to harass and threaten evictions against long-standing residents of Mgongeni, the majority of whom are elderly, vulnerable, and have no other place to call home.
The application is supported by the affidavit of Ramma Hassan Chokwe that reiterates the grounds of the application.
The Respondents Case
The application is opposed by the respondents vide affidavit of Said Sood Mohamed Said Shikely, who states that it is true that there are two suits filed by himself before the, subordinate Court in Mombasa being Msa MCELC No. E122 of 2023 (Said sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Rama Hassan Chokwe) and MSA MCELC No. E201 of 2023 (Said Sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Hamisi Chokwe). He denies having filed a case against Hamisi.
The suits filed before the Subordinate court in Mombasa relate to Plot NO, 7540/1/ MN on which the said Rama Hassan Chokwe and Hamisi Chokwe are ground tenants and own houses without land.
The respondent denies that the two pending suits were scheduled for hearing or mention on 2nd and 7th October 2025. Msa MCELC No. El 22/2023 was scheduled for 29th September 2025. He is aware that Msa MCELC No. E122 of 2023 (Said Sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Rama Hassan Chokwe) came up for hearing on 29th September 2025 when the Defendant's advocate applied for an adjournment on the ground that her daughter had been involved in an accident at school and she had to rush and assist. The hearing was adjourned to 4th October, 2026.
The respondent contends that MSA MCELC No. E201 of 2023 (Said Sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Hamisi Cholcwe) came up for mention on 13th October 2025 for the purpose of ascertaining whether the Defendant's advocate had filed submissions on a Notice of Preliminary Objection that they had raised alleging that the said suit was sub-judice as the issue sought to be determined was the subject of this instant petition. On the said day, the court reserved the ruling for the Preliminary Objection for 20th November 2025.
The respondent contends that that this petition was filed in March 2024 by the Petitioners by which time the two suits that they are seeking to have stayed had already been filed before the Subordinate court. It is also clear from the Petition herein that it involves other suit parcels of land being Plot No. 82/1/ MN, Plot No. 83/1/ MN and Plot No. 261/1/ MN and is not necessarily limited to Plot No. 7540/1/ MN which forms the subject matter of the two suits before the subordinate Court. Further, that there were several cases touching on the suit premises and the Petitioners have all along been aware and that it is also clear that the two suits before the subordinate court in Mombasa in respect of which the proceedings are sought to be stayed, are seeking inter alia settlement of ground rent arrears, and goodwill for extensions that were constructed on the house without his consent, among other prayers all of which are not the subject matter of this petition.
'The suit property known as Plot No. 7540/1/ MN has been distributed to the beneficiaries of the estate of the late Sood Mohamed Said Shikely pursuant to a confirmation of grant that was issued in Mombasa High Court Succession Cause No. 365 of 1994 (In the Matter of the Estate of the Late Sood Mohamed Said Shikely (Deceased) dated 15th October 2012.
According to the respondent, the contents of paragraph 6 of the Supporting Affidavit are not true. Rama Hassan Chokwe and Hamisi Chokwe are the ones who are in occupation of the houses without land in respect of which they have been individually sued for arrears of ground rent.
He further states that in Msa CMELC No. El 22 of 2023, the Petitioner's advocate who is representing the Defendant in the said suit filed a Notice of Preliminary Objection dated 24.082023. the same was heard and a ruling delivered on 4th June 2024 dismissing the Preliminary Objection.The petitioners advocate who is equally representing the Defendant (Hamisi Chokwe) in Msa MCELC No. 11201 of 2023 filed a Notice of preliminary Objection dated 26th February 2024. The same was dismissed for want of prosecution on 4th July 2024 when the Defendant's counsel failed to attend court and had not also complied with the court’s directions to file submissions in respect of the Preliminary Objection.
The 1st and 2nd Respondents claim is for inter alia Ground rent arrears all of which are within the pecuniary jurisdiction of the suits before the subordinate court are not for determination of the issue of ownership and as such, the pecuniary value of Plot No. 7540/1/MN does not arise at all.
The respondents believe that no sufficient cause has been established by the Petitioners/Applicant as to why the proceedings before the subordinate court in Mombasa being Msa MCELC No E122/2023 and MCELC NO. E201/2023 ought to be stayed.
The power to stay proceedings is a matter of judicial discretion to be exercised sparingly and in the interest of justice, bearing in mind the need for expeditious disposal of cases and in turn resolution of disputes.
There is no likelihood of any conflicting decisions arising from the superior court in this petition and the two suits before the subordinate court (Msa MCELC No. 13122/2023 and MCELC No. 13201/2023) as the causes of action are distinct. That there is no valid reason for consolidation of the suits filed before the Subordinate court and this petition as the issues raised for determination are distinct.
The application seeking to stay proceedings in the two suits pending before the subordinate court in Mombasa has been brought belatedly and only seeks to delay the hearing and disposal of the said suits which have come up for heating on several Instances and have always been adjourned at the instance of the Defendant's counsel who is also representing the Petitioners/ Applicant herein. The application for stay of proceedings was filed after a hearing date for this petition had already been set for 10th February 2025. The lst and 2 nd Respondents stand to suffer great prejudice if the orders sought by the petitioners are granted as it will only amount to an unjust delay of the resolution of the disputes that led to the institution of the two suits that were filed against Hamisi Chokwe and Rama Hassan Chokwe.
I have not seen submissions filed by the petitioners
Respondents Submissions
The respondent submits that it is not in dispute that there are two suits that were filed prior to this petition by the 1st Respondent herein being Msa MCELC No. E122 of 2023 (Said Sood o Mohamed Said Shikely Vs. Rama Hassan Chokwe) and Msa MCELC No. E201 of 2023 (Said Sood Mohamed Said Shikely Vs. Hamisi Chokwe). The former was filed in July 2023 whereas the latter was filed in court in October z 2023.
The two suits that are pending before the Subordinate Court are in respect of Plot No. 7540/1/ MN and the prayers sought are against the specific defendants as ground tenants, for inter alia ground rent arrears and good will on account of extensions built by the Defendants on the said property without the Plaintiff's consent.
This petition was lodged in court by the Petitioners after the two suits that were pending determination before the subordinate court had already been lodged. In fact, this petition was lodged in court in March 2024. This petition is in respect of several plots being Plot No. 7540/1/MN, Plot No. 82/1/MN, Plot No. 83/1/MN and Plot No. 261/1/MN. The main issues arising for determination by this honourable court are whether the suits pending before the subordinate court should be stayed and whether the suits pending before the subordinate court ought to be consolidated with this petition.
On the issue of whether the proceedings before the subordinate court ought to be stayed, the respondent submits that the power to stay proceedings is a matter of judicial discretion which ought to be exercised sparingly and in the interest of justice, bearing in mind the need for expeditious disposal of cases and in turn resolution of disputes.
The respondent cites the case of Lucy Waithera Kimanga & 2 Others Vs. John Waiganjo Gichuri (2015) e KLR, where the Hon. Justice Gikonyo in considering an application for stay of proceedings pending appeal stated that the legal considerations in an application stay of Proceedings have been enunciated in a host of judicial decisions may be summarized as follows :-
1. The decision whether or not grant a stay of Proceedings or further Proceedings on a decree or order applealed from is a matter of judicial discretion to be exercised in the interest of justice.
2. The sole question is whether it is in the interest of justice to order a stay of Proceedings and it is, on what terms it should be granted.
3. In decision whether to order a stay, the court should essential weigh the pros and cons of granting or not granting the order.
The respondent submits that it would not be in the interest of justice to stay the proceedings in the two suits pending before the subordinate court. The two suits that are pending determination before the subordinate court are in respect of one suit property only (Plot No. 7540/1/ MN) and therefore the cause of action and the prayers sought in the said suits are quite distinct from the prayers sought by the Petitioners in this petition. No useful purpose will be served by staying the proceedings before the subordinate court and that it would be highly prejudicial to the and 2nd Respondents herein to stay the proceedings before the subordinate court as it would only amount to delay of the finalization of the said suits without any proper justification.
The respondent cite Article 159(2) (b) of the Constitution of Kenya which provides that "In exercising judicial authority, courts and tribunals shall be guided by the following Principles — [b]justice shall not be delayed."
The respondent urges this honourable court to consider the nature of this matter and to weigh the pros and cons of granting or not granting an order staying the proceedings pending before the subordinate court. There are no compelling reasons that have been advanced by the Petitioners/Applicants to warrant staying the proceedings in the two suits pending before the subordinate court. The respondent urges this honourable court to exercise its discretion in favour of the 1st and 2nd Respondents by disallowing the prayer sought for stay of proceedings pending in the two suits that are before the subordinate court.
On the issue of whether this petition ought to be consolidated with the two suits pending determination before the subordinate court the respondent submits that whereas the parties to the suits 'before the Subordinate Court are also parties to this petition, this honourable court, there are many other parties included in this petition that are not party to the suits before the Subordinate courts. 'The causes of action arising for determination in this petition and the two suits before the subordinate court are distinct. The suit properties in issue in the petition are four in number (Plot No. 7540/1/ MN, Plot No. 82/1/MN, Plot No. 83/1/MN and Plot No. 261/1/MN) whereas only one property (Plot No. 7540/1/ MN) is the subject matter from which the cause of action in the suits before the subordinate courts arise. The Petitioners have raised various allegations of their rights having been violated hence this petition and have sued several Respondents. It would not be just to drag all the other parties in this petition to the suits before the subordinate courts that do not concern them in any way hence the petition should not be consolidated with the suits before the subordinate court.
The respondent cites the case of the Law Society Of Kenya Vs. Centre For Human Rights And Democracy & 12 Others (2014) Kesc 29 (Klr) the Supreme Court stated inter alia that:-
"The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes, (emphasis ours) and to provide a framework, for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party, that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. In the matter at hand, this court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues [emphasis ours]. In addition, the court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed”
In KAMAU VS. NJOROGE (2024) KEHC 1953 (KLR) (29 February 2024) the Hon. Justice F Muchemi stated inter alia that” The Law governing the civil Procedure Act and Order 11 Rule 3(1) (h) of the Civil Procedure Rules in consolidating suits, the civil procedure rules mandate courts to be guided by the following three parameters
1. Do the same question of law or fact arise in both cases?
2. Do the rights or reliefs claimed in the two cases arise out of the same transaction or series of transactions?
3. Will any party be disadvantaged or prejudiced will consolidation confer undue advantage to the other party?
In Prem Lala Nallata & Another vs Chandi P rasad Sikarİa (2007) @ Supreme Court Cases 551, Supreme Court of India held:-
“it cannot be disputed that the court has power to consolidate suits in appropriate suits in appropriate cases. The main purposes of consolidation is therefore to save costs, time and effort to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in court and it appears to the court that some common questions of law or facts rises in both or all the suits or that the rights or relief claimed in the suits are in respect or arise out of the same transaction or series of transactions or that for some other reasons it is desirable to make an order consolidating the suit [emphasis ours] it is therefore clear that the purpose of consolidation of suits is to save costs, time, speed up trial, eliminate duplicative trials involving the same parties, issues and evidence, for efficient and proper administration of justice and expeditious disposal of matters consequently promoting judicial economy so long as it is not prejudicial to an of the parties.”
The respondent submits that the causes of action and issues arising for determination in petition and the two suits pending determinatıon before tine subordinate court are different and they ought not to be consolidated. There are no common questions of law or fact arising in this petition and the suits before the subordinate courts. The reliefs sought are different and do not arise out of the same transaction or series of transactions.
The suits that are pending before the subordinate Court were instituted before this Petition was filed and are before a court of competent jurisdiction to hear and determine the issues arising therein. They ought to be disposed of before the subordinate court for efficient and expeditious disposal of the disputes arising between the parties.
Consolidation, if allowed, would be highly prejudicial to the 1st and 2nd Respondents herein as it will only amount to delay in delivery of justice in the matters before the subordinate court that have no relationship at all to this petition. The respondent submits that it is not desirable at all to consolidate this petition with the two suits pending before the subordinate court. It is also imperative for this honourable court to note that this application has been brought before this honourable court belatedly and only seeks to delay the hearing of the suits before the subordinate courts, both of which have come up for hearing on several occasions and have always been adjourned at the instance of the Defendant's counsel who is representing the Petitioners herein.
The respondent invites this honourable court to note that the instant application was indeed afterthought as it was only filed after a hearing date for this petition had been scheduled for 10th February 2026 by the court, in the presence of the advocates acting for the petitioners and the 1st and 2nd Respondents, who had confirmed that they had complied with pre-trial directions and were ready for a hearing date.
Analysis and Determination
A stay of proceedings is a grave judicial action granted sparingly, only in exceptional circumstances, as it interferes with a litigant's right to access justice and a fair trial. The applicant in this case is required to demonstrate that the proceedings are sub-judice to the petition, frivolous, vexatious, or that a refusal would render the outcome of petition unenforceable.
The Exceptional Nature of the order is that requires the courts to exercise this power cautiously is that it halts the litigation process. It is not a routine order but a measure reserved for cases where the proceedings are manifestly groundless, abusive, or cause irreparable harm.
The order of stay of proceedings should be given to preventing nugatory Results: A primary consideration is whether failing to grant the stay would make a future successful petition pointless by destroying the subject matter of the dispute.
The court must balance the applicant's right to seek the superior courts interpretation of the constitution of Kenya 2010 against the respondent’s right to proceed in the lower court.
The applicant must provide more than mere assertions; empirical or documentary evidence is typically required to demonstrate that the outcome of the petition will affect the outcome of the lower court matters.
I have considered the evidence on record and do find that the suits in the lower court revolve on the (Swahili ) landlord- tenant relationship commonly referred to house without land whereby the petitioners are allegedly tenants of the 1st and 2nd respondents and are required to pay ground rent in respect to houses constructed on the land belonging to the 1st and 2nd respondents. The claims by the 1st and 2nd respondents revolve on ground rent, goodwill and eviction on the extensions constructed by the petitioners without the 1st and 2nd respondents’ permission. This court finds that the Chief Magistrates Court has the jurisdiction to deal with the issues of breach of the terms of house without land, rent and eviction of the defendants in the two suits in the lower court. The application for stay of proceedings is found without merit and is dismissed.
On consolidation, this court finds that the causes of action and issues arising for determination in petition and the two suits pending determinatıon before tine subordinate court are different and therefore cannot be consolidated. There are no common questions of law or fact arising in this petition and the suits before the subordinate courts as submitted by the respondents. The reliefs sought are different and do not arise out of the same transaction or series of transactions. The application is therefore found to lack merit and is dismissed with costs.
The Applicants through Rama Hassan Chokwe have come to this court seeking orders that there be an immediate ex parte order of stay of all proceedings, hearings, and consequential orders in Mombasa Chief Magistrates Court, MCCELC No. E122 of 2023, Mombasa MCCELC No. E122 of 2023 SAID SOOD MOHAMED SAID SHIKELY VS RAMA HASSAN CHOKWE, MCELC NO. E201 of 2023 - SAID SOOD MOHAMED SAID SHIKELY VS HAMISI CHOICWE pending the hearing and determination of this Application inter partes.
That upon hearing this Application inter partes, this Honourable Court be pleased to order the consolidation of Mombasa ELCPET/E002/2024 (High Court)- HAMISI CHOKWE AND OTHERS VERSUS SAID SOOD SHIRLEY AND OTHERS, Mombasa MCCELC No. E122 of 2023 Said Sood Mohamed Said Shikely Vs Rama Hassan Chokwe, Mcelc/E201/2023 - Said Sood Mohamed Said Shikely VS Hamisi Chokwe for efficient disposal, avoidance of duplicity of suits, and prevention of conflicting judgments over the same subject matter.
THAT costs of this Application be in the cause.
The application is based on grounds that there are two parallel proceedings involving the same subject property and largely the same parties, namely: Mombasa ELCPET/E002/2024 (High Court Petition), filed by the Applicants challenging the constitutionality of the Respondent's actions over the Mgongeni property; Mombasa MCCELC No. E122 of 2023 (Lower Court suit), and MCELC/E201/2023 filed by the o Respondent against the Applicants.
The applicants contend that the doctrine of res sub judice, under Section 6 of the Civil Procedure Act, bars concurrent litigation over the same subject matter between the same parties in different courts, as it risks conflicting outcomes and amounts to abuse of process.
The applicants lament that despite the pendency of the High Court Petition, the Respondent has continued to prosecute MCCELC No. E122 of 2023, which is now listed for hearing before Hon. L.M. Mwamuye on 2nd October 2025, thereby creating a real danger of conflicting judgments and that the Respondent has previously irregularly obtained orders from the Chief Magistrates Court for assessment of rent matters which properly lie before the Rent Tribunal thereby engaging in forum shopping and undermining the judicial process.
According to the applicants, such irregular orders have been used to harass and threaten evictions against long-standing residents of Mgongeni, the majority of whom are elderly, vulnerable, and have no other place to call home.
The application is supported by the affidavit of Ramma Hassan Chokwe that reiterates the grounds of the application.
The Respondents Case
The application is opposed by the respondents vide affidavit of Said Sood Mohamed Said Shikely, who states that it is true that there are two suits filed by himself before the, subordinate Court in Mombasa being Msa MCELC No. E122 of 2023 (Said sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Rama Hassan Chokwe) and MSA MCELC No. E201 of 2023 (Said Sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Hamisi Chokwe). He denies having filed a case against Hamisi.
The suits filed before the Subordinate court in Mombasa relate to Plot NO, 7540/1/ MN on which the said Rama Hassan Chokwe and Hamisi Chokwe are ground tenants and own houses without land.
The respondent denies that the two pending suits were scheduled for hearing or mention on 2nd and 7th October 2025. Msa MCELC No. El 22/2023 was scheduled for 29th September 2025. He is aware that Msa MCELC No. E122 of 2023 (Said Sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Rama Hassan Chokwe) came up for hearing on 29th September 2025 when the Defendant's advocate applied for an adjournment on the ground that her daughter had been involved in an accident at school and she had to rush and assist. The hearing was adjourned to 4th October, 2026.
The respondent contends that MSA MCELC No. E201 of 2023 (Said Sood Mohamed Said Shikely (suing as the Administrator of the Estate of Sood Mohamed Said Shikely) =VS= Hamisi Cholcwe) came up for mention on 13th October 2025 for the purpose of ascertaining whether the Defendant's advocate had filed submissions on a Notice of Preliminary Objection that they had raised alleging that the said suit was sub-judice as the issue sought to be determined was the subject of this instant petition. On the said day, the court reserved the ruling for the Preliminary Objection for 20th November 2025.
The respondent contends that that this petition was filed in March 2024 by the Petitioners by which time the two suits that they are seeking to have stayed had already been filed before the Subordinate court. It is also clear from the Petition herein that it involves other suit parcels of land being Plot No. 82/1/ MN, Plot No. 83/1/ MN and Plot No. 261/1/ MN and is not necessarily limited to Plot No. 7540/1/ MN which forms the subject matter of the two suits before the subordinate Court. Further, that there were several cases touching on the suit premises and the Petitioners have all along been aware and that it is also clear that the two suits before the subordinate court in Mombasa in respect of which the proceedings are sought to be stayed, are seeking inter alia settlement of ground rent arrears, and goodwill for extensions that were constructed on the house without his consent, among other prayers all of which are not the subject matter of this petition.
'The suit property known as Plot No. 7540/1/ MN has been distributed to the beneficiaries of the estate of the late Sood Mohamed Said Shikely pursuant to a confirmation of grant that was issued in Mombasa High Court Succession Cause No. 365 of 1994 (In the Matter of the Estate of the Late Sood Mohamed Said Shikely (Deceased) dated 15th October 2012.
According to the respondent, the contents of paragraph 6 of the Supporting Affidavit are not true. Rama Hassan Chokwe and Hamisi Chokwe are the ones who are in occupation of the houses without land in respect of which they have been individually sued for arrears of ground rent.
He further states that in Msa CMELC No. El 22 of 2023, the Petitioner's advocate who is representing the Defendant in the said suit filed a Notice of Preliminary Objection dated 24.082023. the same was heard and a ruling delivered on 4th June 2024 dismissing the Preliminary Objection.The petitioners advocate who is equally representing the Defendant (Hamisi Chokwe) in Msa MCELC No. 11201 of 2023 filed a Notice of preliminary Objection dated 26th February 2024. The same was dismissed for want of prosecution on 4th July 2024 when the Defendant's counsel failed to attend court and had not also complied with the court’s directions to file submissions in respect of the Preliminary Objection.
The 1st and 2nd Respondents claim is for inter alia Ground rent arrears all of which are within the pecuniary jurisdiction of the suits before the subordinate court are not for determination of the issue of ownership and as such, the pecuniary value of Plot No. 7540/1/MN does not arise at all.
The respondents believe that no sufficient cause has been established by the Petitioners/Applicant as to why the proceedings before the subordinate court in Mombasa being Msa MCELC No E122/2023 and MCELC NO. E201/2023 ought to be stayed.
The power to stay proceedings is a matter of judicial discretion to be exercised sparingly and in the interest of justice, bearing in mind the need for expeditious disposal of cases and in turn resolution of disputes.
There is no likelihood of any conflicting decisions arising from the superior court in this petition and the two suits before the subordinate court (Msa MCELC No. 13122/2023 and MCELC No. 13201/2023) as the causes of action are distinct. That there is no valid reason for consolidation of the suits filed before the Subordinate court and this petition as the issues raised for determination are distinct.
The application seeking to stay proceedings in the two suits pending before the subordinate court in Mombasa has been brought belatedly and only seeks to delay the hearing and disposal of the said suits which have come up for heating on several Instances and have always been adjourned at the instance of the Defendant's counsel who is also representing the Petitioners/ Applicant herein. The application for stay of proceedings was filed after a hearing date for this petition had already been set for 10th February 2025. The lst and 2 nd Respondents stand to suffer great prejudice if the orders sought by the petitioners are granted as it will only amount to an unjust delay of the resolution of the disputes that led to the institution of the two suits that were filed against Hamisi Chokwe and Rama Hassan Chokwe.
I have not seen submissions filed by the petitioners
Respondents Submissions
The respondent submits that it is not in dispute that there are two suits that were filed prior to this petition by the 1st Respondent herein being Msa MCELC No. E122 of 2023 (Said Sood o Mohamed Said Shikely Vs. Rama Hassan Chokwe) and Msa MCELC No. E201 of 2023 (Said Sood Mohamed Said Shikely Vs. Hamisi Chokwe). The former was filed in July 2023 whereas the latter was filed in court in October z 2023.
The two suits that are pending before the Subordinate Court are in respect of Plot No. 7540/1/ MN and the prayers sought are against the specific defendants as ground tenants, for inter alia ground rent arrears and good will on account of extensions built by the Defendants on the said property without the Plaintiff's consent.
This petition was lodged in court by the Petitioners after the two suits that were pending determination before the subordinate court had already been lodged. In fact, this petition was lodged in court in March 2024. This petition is in respect of several plots being Plot No. 7540/1/MN, Plot No. 82/1/MN, Plot No. 83/1/MN and Plot No. 261/1/MN. The main issues arising for determination by this honourable court are whether the suits pending before the subordinate court should be stayed and whether the suits pending before the subordinate court ought to be consolidated with this petition.
On the issue of whether the proceedings before the subordinate court ought to be stayed, the respondent submits that the power to stay proceedings is a matter of judicial discretion which ought to be exercised sparingly and in the interest of justice, bearing in mind the need for expeditious disposal of cases and in turn resolution of disputes.
The respondent cites the case of Lucy Waithera Kimanga & 2 Others Vs. John Waiganjo Gichuri (2015) e KLR, where the Hon. Justice Gikonyo in considering an application for stay of proceedings pending appeal stated that the legal considerations in an application stay of Proceedings have been enunciated in a host of judicial decisions may be summarized as follows :-
1. The decision whether or not grant a stay of Proceedings or further Proceedings on a decree or order applealed from is a matter of judicial discretion to be exercised in the interest of justice.
2. The sole question is whether it is in the interest of justice to order a stay of Proceedings and it is, on what terms it should be granted.
3. In decision whether to order a stay, the court should essential weigh the pros and cons of granting or not granting the order.
The respondent submits that it would not be in the interest of justice to stay the proceedings in the two suits pending before the subordinate court. The two suits that are pending determination before the subordinate court are in respect of one suit property only (Plot No. 7540/1/ MN) and therefore the cause of action and the prayers sought in the said suits are quite distinct from the prayers sought by the Petitioners in this petition. No useful purpose will be served by staying the proceedings before the subordinate court and that it would be highly prejudicial to the and 2nd Respondents herein to stay the proceedings before the subordinate court as it would only amount to delay of the finalization of the said suits without any proper justification.
The respondent cite Article 159(2) (b) of the Constitution of Kenya which provides that "In exercising judicial authority, courts and tribunals shall be guided by the following Principles — [b]justice shall not be delayed."
The respondent urges this honourable court to consider the nature of this matter and to weigh the pros and cons of granting or not granting an order staying the proceedings pending before the subordinate court. There are no compelling reasons that have been advanced by the Petitioners/Applicants to warrant staying the proceedings in the two suits pending before the subordinate court. The respondent urges this honourable court to exercise its discretion in favour of the 1st and 2nd Respondents by disallowing the prayer sought for stay of proceedings pending in the two suits that are before the subordinate court.
On the issue of whether this petition ought to be consolidated with the two suits pending determination before the subordinate court the respondent submits that whereas the parties to the suits 'before the Subordinate Court are also parties to this petition, this honourable court, there are many other parties included in this petition that are not party to the suits before the Subordinate courts. 'The causes of action arising for determination in this petition and the two suits before the subordinate court are distinct. The suit properties in issue in the petition are four in number (Plot No. 7540/1/ MN, Plot No. 82/1/MN, Plot No. 83/1/MN and Plot No. 261/1/MN) whereas only one property (Plot No. 7540/1/ MN) is the subject matter from which the cause of action in the suits before the subordinate courts arise. The Petitioners have raised various allegations of their rights having been violated hence this petition and have sued several Respondents. It would not be just to drag all the other parties in this petition to the suits before the subordinate courts that do not concern them in any way hence the petition should not be consolidated with the suits before the subordinate court.
The respondent cites the case of the Law Society Of Kenya Vs. Centre For Human Rights And Democracy & 12 Others (2014) Kesc 29 (Klr) the Supreme Court stated inter alia that:-
"The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes, (emphasis ours) and to provide a framework, for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party, that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. In the matter at hand, this court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues [emphasis ours]. In addition, the court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed”
In KAMAU VS. NJOROGE (2024) KEHC 1953 (KLR) (29 February 2024) the Hon. Justice F Muchemi stated inter alia that” The Law governing the civil Procedure Act and Order 11 Rule 3(1) (h) of the Civil Procedure Rules in consolidating suits, the civil procedure rules mandate courts to be guided by the following three parameters
1. Do the same question of law or fact arise in both cases?
2. Do the rights or reliefs claimed in the two cases arise out of the same transaction or series of transactions?
3. Will any party be disadvantaged or prejudiced will consolidation confer undue advantage to the other party?
In Prem Lala Nallata & Another vs Chandi P rasad Sikarİa (2007) @ Supreme Court Cases 551, Supreme Court of India held:-
“it cannot be disputed that the court has power to consolidate suits in appropriate suits in appropriate cases. The main purposes of consolidation is therefore to save costs, time and effort to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in court and it appears to the court that some common questions of law or facts rises in both or all the suits or that the rights or relief claimed in the suits are in respect or arise out of the same transaction or series of transactions or that for some other reasons it is desirable to make an order consolidating the suit [emphasis ours] it is therefore clear that the purpose of consolidation of suits is to save costs, time, speed up trial, eliminate duplicative trials involving the same parties, issues and evidence, for efficient and proper administration of justice and expeditious disposal of matters consequently promoting judicial economy so long as it is not prejudicial to an of the parties.”
The respondent submits that the causes of action and issues arising for determination in petition and the two suits pending determinatıon before tine subordinate court are different and they ought not to be consolidated. There are no common questions of law or fact arising in this petition and the suits before the subordinate courts. The reliefs sought are different and do not arise out of the same transaction or series of transactions.
The suits that are pending before the subordinate Court were instituted before this Petition was filed and are before a court of competent jurisdiction to hear and determine the issues arising therein. They ought to be disposed of before the subordinate court for efficient and expeditious disposal of the disputes arising between the parties.
Consolidation, if allowed, would be highly prejudicial to the 1st and 2nd Respondents herein as it will only amount to delay in delivery of justice in the matters before the subordinate court that have no relationship at all to this petition. The respondent submits that it is not desirable at all to consolidate this petition with the two suits pending before the subordinate court. It is also imperative for this honourable court to note that this application has been brought before this honourable court belatedly and only seeks to delay the hearing of the suits before the subordinate courts, both of which have come up for hearing on several occasions and have always been adjourned at the instance of the Defendant's counsel who is representing the Petitioners herein.
The respondent invites this honourable court to note that the instant application was indeed afterthought as it was only filed after a hearing date for this petition had been scheduled for 10th February 2026 by the court, in the presence of the advocates acting for the petitioners and the 1st and 2nd Respondents, who had confirmed that they had complied with pre-trial directions and were ready for a hearing date.
Analysis and Determination
A stay of proceedings is a grave judicial action granted sparingly, only in exceptional circumstances, as it interferes with a litigant's right to access justice and a fair trial. The applicant in this case is required to demonstrate that the proceedings are sub-judice to the petition, frivolous, vexatious, or that a refusal would render the outcome of petition unenforceable.
The Exceptional Nature of the order is that requires the courts to exercise this power cautiously is that it halts the litigation process. It is not a routine order but a measure reserved for cases where the proceedings are manifestly groundless, abusive, or cause irreparable harm.
The order of stay of proceedings should be given to preventing nugatory Results: A primary consideration is whether failing to grant the stay would make a future successful petition pointless by destroying the subject matter of the dispute.
The court must balance the applicant's right to seek the superior courts interpretation of the constitution of Kenya 2010 against the respondent’s right to proceed in the lower court.
The applicant must provide more than mere assertions; empirical or documentary evidence is typically required to demonstrate that the outcome of the petition will affect the outcome of the lower court matters.
I have considered the evidence on record and do find that the suits in the lower court revolve on the (Swahili ) landlord- tenant relationship commonly referred to house without land whereby the petitioners are allegedly tenants of the 1st and 2nd respondents and are required to pay ground rent in respect to houses constructed on the land belonging to the 1st and 2nd respondents. The claims by the 1st and 2nd respondents revolve on ground rent, goodwill and eviction on the extensions constructed by the petitioners without the 1st and 2nd respondents’ permission. This court finds that the Chief Magistrates Court has the jurisdiction to deal with the issues of breach of the terms of house without land, rent and eviction of the defendants in the two suits in the lower court. The application for stay of proceedings is found without merit and is dismissed.
On consolidation, this court finds that the causes of action and issues arising for determination in petition and the two suits pending determinatıon before tine subordinate court are different and therefore cannot be consolidated. There are no common questions of law or fact arising in this petition and the suits before the subordinate courts as submitted by the respondents. The reliefs sought are different and do not arise out of the same transaction or series of transactions. The application is therefore found to lack merit and is dismissed with costs.