Introduction
1. Before the Court is the Defendant's Notice of Motion dated 10th June 2026 seeking, principally, an order for stay of further proceedings pending the hearing and determination of its intended appeal against the ruling delivered on 4th June 2026.
2. The application arises from the ruling of 4th June 2026 by which the Court dismissed the Defendant's application dated 21st April 2026. In that application, the Defendant had sought, inter alia, the conversion of the Plaintiffs' Originating Summons dated 12th February 2026 into a plaint and the cross-examination of the 1st Plaintiff. Following the ruling, the Defendant filed a Notice of Appeal dated 8th June 2026 and thereafter instituted the present application.
3. The application is opposed through the Replying Affidavit of Raj Kanwal Dadhley. The Plaintiffs contend that the Defendant has not satisfied the threshold for the grant of a stay of proceedings. They maintain that the intended appeal is not arguable, will not be rendered nugatory if the proceedings continue, and that no exceptional circumstances have been demonstrated to warrant the stay sought. The Plaintiffs also challenge the competence of the Notice of Appeal.
4. The Defendant's case is that its intended appeal raises questions concerning the propriety of the procedure adopted in the matter, particularly the refusal to convert the Originating Summons into a plaint under Order 37 Rule 19 of the Civil Procedure Rules and the refusal to permit the cross-examination of the 1st Plaintiff under Order 19 Rule 2(1) of the Civil Procedure Rules. It contends that unless the proceedings are stayed, the intended appeal may be overtaken by events.
Analysis and Determination
5. Having considered the application, the affidavits filed by the parties, the rival submissions and the authorities cited, I am of the view that the following issues arise for determination:
a) Whether the Defendant has demonstrated that its intended appeal is arguable;
b) Whether the Defendant has demonstrated that the intended appeal will be rendered nugatory if the proceedings are not stayed; and
c) Whether, in the circumstances of this case, the interests of justice warrant a stay of proceedings.
Whether the Defendant has demonstrated that its intended appeal is arguable
6. The present application seeks a stay of proceedings pending an intended appeal. The grant of such an order is discretionary and is not a matter of course. In considering whether that discretion should be exercised in favour of an applicant, the Court considers, among other matters, whether the intended appeal is arguable, whether it will be rendered nugatory if the proceedings continue and whether, in the circumstances of the case, the interests of justice warrant the interruption of the proceedings. Those considerations have been considered in the authorities cited by the parties, including William Odhiambo Ramogi & 2 others v Attorney General & 3 others; Muslims for Human Rights & 2 others (Interested Parties).
7. The Defendant's intended appeal challenges the refusal to convert the Originating Summons into a plaint and the refusal to permit the cross-examination of the 1st Plaintiff.
8. At this stage, the Court is not called upon to determine whether those complaints will ultimately succeed. The question is whether they raise a bona fide issue deserving consideration by the appellate court.
9. The Plaintiffs contend that the proposed appeal is without merit, principally because the substantive dispute concerns an advocate's lien and the applicable procedure is provided under Order 52 Rule 4 of the Civil Procedure Rules. They further contend that the proposed grounds are intended to delay the determination of the suit.
10. That contention, however, in the respectful view of the Court, substantially concerns the merits of the intended appeal, which are not for determination in the present application.
11. Without expressing any opinion on the merits of the intended appeal, I am unable to find that the questions raised concerning the procedure adopted and the mode of receiving evidence are wholly frivolous.
12. I will accordingly accept that the Defendant has demonstrated an arguable appeal.
Whether the Defendant has demonstrated that the intended appeal will be rendered nugatory if the proceedings are not stayed
13. The finding that the intended appeal is arguable does not, however, dispose of the application. The Defendant must further demonstrate that, unless the proceedings are stayed, the intended appeal will be rendered nugatory.
14. The Defendant's apprehension is that the intended appeal challenges the procedure through which the substantive dispute is to proceed and that, if the proceedings continue before the appeal is determined, the appeal may be overtaken by events.
15. The question, therefore, is whether the continuation of the proceedings would have that consequence.
16. I do not think so.
17. The ruling of 4th June 2026 did not determine the substantive rights and liabilities of the parties. It determined interlocutory questions concerning the manner in which the suit would proceed.
18. Consequently, the continuation of the proceedings does not, merely by reason of that fact, render the intended appeal incapable of effective determination. If the Defendant succeeds in the intended appeal, the questions concerning the propriety of the procedure adopted by the Court will remain capable of consideration by the appellate court, which may grant such relief as is available in law.
19. What the Defendant has demonstrated is the possibility that the proceedings may continue under a procedure which it challenges and that, should the appeal ultimately succeed, some of the steps undertaken in the meantime may prove unnecessary.
20. That possibility, without more, is insufficient. The inconvenience, expense or duplication which may result from the continuation of proceedings does not, of itself, establish that an appeal will be rendered nugatory. The Defendant must demonstrate prejudice of such a nature that, if successful, the appeal would be deprived of practical or effective value.
21. No such prejudice has been demonstrated in the present case. The subject of the intended appeal concerns the propriety of the procedure adopted by the Court. That question will not be lost, destroyed or placed beyond the reach of effective appellate relief merely because the proceedings continue.
22. In the circumstances, I find that the Defendant has not demonstrated that its intended appeal will be rendered nugatory if the stay sought is declined.
23. On the hardship to be occasioned, the Court is of the view that refusal of the stay does not extinguish the Defendant's right to pursue its intended appeal. Its appellate remedies remain available. Granting the stay, on the other hand, would postpone the hearing and determination of the substantive dispute.
24. In the circumstances, I am not persuaded that the interests of justice favour halting the proceedings.
Disposition
25. In the result, the Notice of Motion dated 10th June 2026 is without merit and is hereby dismissed.
26. The costs of the application shall abide the outcome of the suit.
27. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before the Court is the Defendant's Notice of Motion dated 10th June 2026 seeking, principally, an order for stay of further proceedings pending the hearing and determination of its intended appeal against the ruling delivered on 4th June 2026.
2. The application arises from the ruling of 4th June 2026 by which the Court dismissed the Defendant's application dated 21st April 2026. In that application, the Defendant had sought, inter alia, the conversion of the Plaintiffs' Originating Summons dated 12th February 2026 into a plaint and the cross-examination of the 1st Plaintiff. Following the ruling, the Defendant filed a Notice of Appeal dated 8th June 2026 and thereafter instituted the present application.
3. The application is opposed through the Replying Affidavit of Raj Kanwal Dadhley. The Plaintiffs contend that the Defendant has not satisfied the threshold for the grant of a stay of proceedings. They maintain that the intended appeal is not arguable, will not be rendered nugatory if the proceedings continue, and that no exceptional circumstances have been demonstrated to warrant the stay sought. The Plaintiffs also challenge the competence of the Notice of Appeal.
4. The Defendant's case is that its intended appeal raises questions concerning the propriety of the procedure adopted in the matter, particularly the refusal to convert the Originating Summons into a plaint under Order 37 Rule 19 of the Civil Procedure Rules and the refusal to permit the cross-examination of the 1st Plaintiff under Order 19 Rule 2(1) of the Civil Procedure Rules. It contends that unless the proceedings are stayed, the intended appeal may be overtaken by events.
Analysis and Determination
5. Having considered the application, the affidavits filed by the parties, the rival submissions and the authorities cited, I am of the view that the following issues arise for determination:
a) Whether the Defendant has demonstrated that its intended appeal is arguable;
b) Whether the Defendant has demonstrated that the intended appeal will be rendered nugatory if the proceedings are not stayed; and
c) Whether, in the circumstances of this case, the interests of justice warrant a stay of proceedings.
Whether the Defendant has demonstrated that its intended appeal is arguable
6. The present application seeks a stay of proceedings pending an intended appeal. The grant of such an order is discretionary and is not a matter of course. In considering whether that discretion should be exercised in favour of an applicant, the Court considers, among other matters, whether the intended appeal is arguable, whether it will be rendered nugatory if the proceedings continue and whether, in the circumstances of the case, the interests of justice warrant the interruption of the proceedings. Those considerations have been considered in the authorities cited by the parties, including William Odhiambo Ramogi & 2 others v Attorney General & 3 others; Muslims for Human Rights & 2 others (Interested Parties).
7. The Defendant's intended appeal challenges the refusal to convert the Originating Summons into a plaint and the refusal to permit the cross-examination of the 1st Plaintiff.
8. At this stage, the Court is not called upon to determine whether those complaints will ultimately succeed. The question is whether they raise a bona fide issue deserving consideration by the appellate court.
9. The Plaintiffs contend that the proposed appeal is without merit, principally because the substantive dispute concerns an advocate's lien and the applicable procedure is provided under Order 52 Rule 4 of the Civil Procedure Rules. They further contend that the proposed grounds are intended to delay the determination of the suit.
10. That contention, however, in the respectful view of the Court, substantially concerns the merits of the intended appeal, which are not for determination in the present application.
11. Without expressing any opinion on the merits of the intended appeal, I am unable to find that the questions raised concerning the procedure adopted and the mode of receiving evidence are wholly frivolous.
12. I will accordingly accept that the Defendant has demonstrated an arguable appeal.
Whether the Defendant has demonstrated that the intended appeal will be rendered nugatory if the proceedings are not stayed
13. The finding that the intended appeal is arguable does not, however, dispose of the application. The Defendant must further demonstrate that, unless the proceedings are stayed, the intended appeal will be rendered nugatory.
14. The Defendant's apprehension is that the intended appeal challenges the procedure through which the substantive dispute is to proceed and that, if the proceedings continue before the appeal is determined, the appeal may be overtaken by events.
15. The question, therefore, is whether the continuation of the proceedings would have that consequence.
16. I do not think so.
17. The ruling of 4th June 2026 did not determine the substantive rights and liabilities of the parties. It determined interlocutory questions concerning the manner in which the suit would proceed.
18. Consequently, the continuation of the proceedings does not, merely by reason of that fact, render the intended appeal incapable of effective determination. If the Defendant succeeds in the intended appeal, the questions concerning the propriety of the procedure adopted by the Court will remain capable of consideration by the appellate court, which may grant such relief as is available in law.
19. What the Defendant has demonstrated is the possibility that the proceedings may continue under a procedure which it challenges and that, should the appeal ultimately succeed, some of the steps undertaken in the meantime may prove unnecessary.
20. That possibility, without more, is insufficient. The inconvenience, expense or duplication which may result from the continuation of proceedings does not, of itself, establish that an appeal will be rendered nugatory. The Defendant must demonstrate prejudice of such a nature that, if successful, the appeal would be deprived of practical or effective value.
21. No such prejudice has been demonstrated in the present case. The subject of the intended appeal concerns the propriety of the procedure adopted by the Court. That question will not be lost, destroyed or placed beyond the reach of effective appellate relief merely because the proceedings continue.
22. In the circumstances, I find that the Defendant has not demonstrated that its intended appeal will be rendered nugatory if the stay sought is declined.
23. On the hardship to be occasioned, the Court is of the view that refusal of the stay does not extinguish the Defendant's right to pursue its intended appeal. Its appellate remedies remain available. Granting the stay, on the other hand, would postpone the hearing and determination of the substantive dispute.
24. In the circumstances, I am not persuaded that the interests of justice favour halting the proceedings.
Disposition
25. In the result, the Notice of Motion dated 10th June 2026 is without merit and is hereby dismissed.
26. The costs of the application shall abide the outcome of the suit.
27. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent