This ruling is for the appellant’s application dated 21 st May 2025 which sought the following orders;
1. THAT the proceedings in Thika Small Claims Court SCCCOMM E160 of 2025 be and are hereby stayed pending hearing and determination of this appeal.
2. THAT the costs of this application be provided for.
3. Any other order that the Honourable Court may deem fit and just to grant.
The background of the matter is that the appellant filed a claim in the lower court seeking judgment for a sum of Kshs 381,900.00. The respondent did not file a response in time and on 20-02-2025, the trial court on application by the appellant entered judgment as prayed. By an application dated 25-02-2025 which was five days after the entry of default judgment, the respondent sought to set aside the judgement which application was granted vide ruling dated 3-04-2025 which is the subject of this appeal.
The appellant now wants his own suit stayed pending the determination of this appeal. What I understand the appellant as saying is that; he does not want the lower court to hear him on merits and wants the default judgement to stand. The main ground of appeal is that the respondent’s affidavit in support of his application to set aside the default judgment was fatally defective as it had indicated that one Martin Njau Njuguna who was a stranger to the proceedings was the deponent although the jurat correctly had the name of the respondent as the deponent.
None of the parties has told me whether the issue of the defectiveness of the affidavit was taken up or raised before the trial court. The lower court file which was forwarded to this court does not have the submissions of the parties filed before that court but reading from the ruling of the trial court, it is apparent that the defectiveness of the supporting affidavit was not an issue in the application and if it was, the trial court did not address it. Although it may be a matter of law, if the appellant let it slip through, he in my opinion, cannot raise it on appeal but I would leave that issue to the Judge who will be hearing the main appeal.
I have read the submissions of the appellant dated 11 th July 2025 as well as those of the respondent dated 25 th July 2025. Both parties are in agreement on the conditions for granting an application for stay of proceedings. They have cited the authority of William Odhiambo Ramogi & 2 others v The Honourable Attorney General & 3 others [2019] which set the principles applicable in considering an application of this nature.
I have considered the authority cited above and the holding of Honourable Justice Joel Ngugi (as he then was) in Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR) where he in citing the same authority considered an extract from Halsbury’s Laws of England thus;
‘All these factors must be considered, in a given case, in the spirit concisely expressed in Halsbury’s Laws of England, 4 th Edition, Vol. 37 at p. 330:
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….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 this case.’
The appellant has submitted that the appeal is arguable while the respondent has termed the same as being based on a technicality. I do not believe that the issue raised by the appellant is a technicality but as stated earlier in this ruling, I would not want to discuss the merits of the appeal in this ruling safe to state that the point is arguable.
It is also argued that the appeal will be rendered nugatory if the application is not allowed since by the time the appeal is heard, the trial will have gone on in reliance on the impugned ruling hence making the appeal an academic exercise. That may be so but the aspect of nugatory must be considered in the context of the possible outcome of the matter sought to be stayed if it were to proceed.
The matter before the trial court had not gone far. The appellant had just obtained a default judgment and all that was required was for the respondent to file a defence for the matter to proceed for hearing. The parties will still have the window for appeal once the final judgement in the lower court is delivered. In my view, the appellant is exploiting a legal position in order to avoid the meritorious hearing of the matter at the trial court. The respondent has a constitutional right to be heard which is what the lower court granted him and if indeed the appellant had a good case, it should have been better having the same disposed of expeditiously.
The appellant argues that stay of proceedings will save judicial time but in my view, it will work to the contrary. If it were not for this appeal, the lower court matter would have been concluded and we would probably be dealing with an appeal on the main suit in the event the losing party chose to appeal. It has taken almost a year for this application to be heard whereas Section 34 the Small Claims Court Act dictates that matters before the said courts be heard and finalised within sixty days. Granting an order for stay of proceedings will in my opinion be a mockery to this statutory requirement.
Having said the above, I do not see any merits in the appellant’s application dated 21 st May 2025 and the same is hereby dismissed with costs to the respondent.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in absence of the appellant and in presence of Miss Macharia for the respondent.
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1. THAT the proceedings in Thika Small Claims Court SCCCOMM E160 of 2025 be and are hereby stayed pending hearing and determination of this appeal.
2. THAT the costs of this application be provided for.
3. Any other order that the Honourable Court may deem fit and just to grant.
The background of the matter is that the appellant filed a claim in the lower court seeking judgment for a sum of Kshs 381,900.00. The respondent did not file a response in time and on 20-02-2025, the trial court on application by the appellant entered judgment as prayed. By an application dated 25-02-2025 which was five days after the entry of default judgment, the respondent sought to set aside the judgement which application was granted vide ruling dated 3-04-2025 which is the subject of this appeal.
The appellant now wants his own suit stayed pending the determination of this appeal. What I understand the appellant as saying is that; he does not want the lower court to hear him on merits and wants the default judgement to stand. The main ground of appeal is that the respondent’s affidavit in support of his application to set aside the default judgment was fatally defective as it had indicated that one Martin Njau Njuguna who was a stranger to the proceedings was the deponent although the jurat correctly had the name of the respondent as the deponent.
None of the parties has told me whether the issue of the defectiveness of the affidavit was taken up or raised before the trial court. The lower court file which was forwarded to this court does not have the submissions of the parties filed before that court but reading from the ruling of the trial court, it is apparent that the defectiveness of the supporting affidavit was not an issue in the application and if it was, the trial court did not address it. Although it may be a matter of law, if the appellant let it slip through, he in my opinion, cannot raise it on appeal but I would leave that issue to the Judge who will be hearing the main appeal.
I have read the submissions of the appellant dated 11 th July 2025 as well as those of the respondent dated 25 th July 2025. Both parties are in agreement on the conditions for granting an application for stay of proceedings. They have cited the authority of William Odhiambo Ramogi & 2 others v The Honourable Attorney General & 3 others [2019] which set the principles applicable in considering an application of this nature.
I have considered the authority cited above and the holding of Honourable Justice Joel Ngugi (as he then was) in Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR) where he in citing the same authority considered an extract from Halsbury’s Laws of England thus;
‘All these factors must be considered, in a given case, in the spirit concisely expressed in Halsbury’s Laws of England, 4 th Edition, Vol. 37 at p. 330:
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….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 this case.’
The appellant has submitted that the appeal is arguable while the respondent has termed the same as being based on a technicality. I do not believe that the issue raised by the appellant is a technicality but as stated earlier in this ruling, I would not want to discuss the merits of the appeal in this ruling safe to state that the point is arguable.
It is also argued that the appeal will be rendered nugatory if the application is not allowed since by the time the appeal is heard, the trial will have gone on in reliance on the impugned ruling hence making the appeal an academic exercise. That may be so but the aspect of nugatory must be considered in the context of the possible outcome of the matter sought to be stayed if it were to proceed.
The matter before the trial court had not gone far. The appellant had just obtained a default judgment and all that was required was for the respondent to file a defence for the matter to proceed for hearing. The parties will still have the window for appeal once the final judgement in the lower court is delivered. In my view, the appellant is exploiting a legal position in order to avoid the meritorious hearing of the matter at the trial court. The respondent has a constitutional right to be heard which is what the lower court granted him and if indeed the appellant had a good case, it should have been better having the same disposed of expeditiously.
The appellant argues that stay of proceedings will save judicial time but in my view, it will work to the contrary. If it were not for this appeal, the lower court matter would have been concluded and we would probably be dealing with an appeal on the main suit in the event the losing party chose to appeal. It has taken almost a year for this application to be heard whereas Section 34 the Small Claims Court Act dictates that matters before the said courts be heard and finalised within sixty days. Granting an order for stay of proceedings will in my opinion be a mockery to this statutory requirement.
Having said the above, I do not see any merits in the appellant’s application dated 21 st May 2025 and the same is hereby dismissed with costs to the respondent.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in absence of the appellant and in presence of Miss Macharia for the respondent.
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