RULING
1. By a Notice of Motion dated 13 th day of February, 2026. The Applicant seeks orders thus:
i. Spent
ii. THAT this Honourable Court be pleased to Stay further proceedings together with all consequential orders thereto in WAMBA CMCC NO E097 OF 2026 (Formally MARALAL CMCC No. E103 OF 2025) (lead file), MARALAL CMCC Nos. E047 E046 E041 E059 E045 E054 E049 E044 E051 E058 E057 E061 E060 E052 E050 E070 E097 E002 E036 E034 E039 E031 E037 E027 E035 E032 E005 E030 E013 E021 E015 E008 E020 E017 E025 E040 E012 E038 E004 E083 E084 E067 E072 E071 EOOI E124 E123 E122 E121 E120 E115 E114 E115 E114 E113 EI 12 E109 E108 E107 E105 E086 E085 E040 E033 E024 E021 E018 E016 E050 E045 E044 E043 E042 E040 EOOI E002 E003 E006 E007 E008 E009 EOIO E011 E014 E016 E017 E018 E019 E020 E022 E023 E026 E027 E028 E029 EOSI E052 E053 E055 E056 E057 E058 E059 E060 E061 E062 E063 E064 E065 E066 E067 E068 E069 E070 E071 E072 E073 E074 E075 E076 E077 E078 E079 E080 E081 E082 E083 E084 E087 E088 E091 E092 E093 E094 E095 E096 E097 E098 E099 EIOO EIOI E102 E104 E106 E11O E111 E116 E117 E118 E119 E125 & E126 OF 2025 & 2026 pending hearing and determination of this Appeal.
2. The substratum of the application is that:-
a) On 13 th February, 2026 the Honourable Court delivered its ruling dismissing the Appellant’s Notice of Preliminary Objection dated 23 rd January, 2026 on jurisdiction of the court to entertain Wamba CMCC No.E097 of 2026 (formally MARALAL CMCC No.E103 OF 2025) (lead file) together with 153 related claims.
b) The Appellant being aggrieved with the said ruling, filed an appeal on 13 th February, 2026.
c) It is highly probable that if an order for stay of proceedings together with all consequential orders is not granted, Wamba CMCC No.E097 of 2026 (formally MARALAL CMCC No.E103 OF 2025) (lead file) together with 153 related claims will proceed for hearing on 16 th February, 2026 thus rendering the appeal nugatory.
d) The Appellant has an arguable appeal which is not frivolous as set out in the Memorandum of Appeal dated 13 th February, 2026 annexed herewith.
e) That the application has been brought without unreasonable delay.
f) There will be no prejudice occasioned to the Respondent(s) herein and those in 153 related claims, should this Honourable Court grant the orders sought.
3. Further, the application is supported by an affidavit deponed by Mr. Leon Kalisto, the advocate in conduct of the matter who avers that compensation procedure laid down in Nyeri Civil Appeal No.E030 of 2020, Kenya Wildlife Service –vs- Purity Kanini hence claims in Wamba CMCC No.E097 of 2026 (Formerly Maralal CMCC No.E102 of 2025 (lead file) together with 153 related claims have been filed prematurely as the Respondent(s) are yet to exhaust the compensation processes under Section 25 of the Wildlife Conservation and Management Act.
4. That having reported the alleged matter as stated in the plaint, the Respondent(s) should at the outset have sought redress from the County Conservation and Compensation Committee (CWCC). That a Preliminary Objection on Jurisdiction of the court to entertain the matter by the court raised was dismissed and being aggrieved and dissatisfied by the ruling the Applicant has appealed.
5. That the Applicant is apprehensive that if the order for stay of proceedings is not granted the lower court will proceed with the matter hence render the appeal nugatory. That the appeal has good prospects of success; the application has been filed without delay and no prejudice shall be suffered by the Respondent(s) if the order sought is granted.
6. In response thereto, the Respondent in opposing the application depones that in dismissing the Applicant’s Preliminary Objection on jurisdiction the trial court arrived at a reasoned decision. That points raised have already been determined by the Supreme Court. That stay of proceedings is a serious, grave and fundamental interference with the right of any party.
7. That the Applicant has failed to demonstrate that the intended appeal raises arguable or weighty issues that justify interruption of ongoing proceedings; that it will suffer irreparable or substantial loss if proceedings in the subordinate court proceed to hearing; and, that the Respondents and other claimants whose matters have been pending for some time and involve compensation for injuries and loss arising from wildlife attacks will suffer prejudice if stay is granted.
8. That the Applicant’s contention that the Respondent failed to exhaust statutory compensation mechanisms is a matter that was fully canvassed before the trial court and determined.
9. The application was canvassed through written submissions. It is urged by the Applicant that the application has met the threshold for grant of stay of proceedings.
10. It is acknowledged that granting the order sought is discretionary. Reliance is placed on the case of Global Tours and Travel Limited v Five Continents Travel Limited;
11. In arguing that the Applicant must demonstrate that the appeal is arguable, reliance is placed on the case of David Morton Silverstein v Atsango Chesoni;
12. It is submitted that the memorandum of appeal raises serious bonafide questions of law particularly challenging the Magistrate’s finding that Section 25 of the Wildlife Conservation & Management Act is merely optional and the claimant may elect to bypass the statutory compensation framework and institute a claim in tort before a civil court. That the Respondent is estopped from filing these suits before exhausting the compensation mechanisms under Section 25 of the Wildlife Conservation Management Act. Reliance is placed on Nanyuki HCCC No. E003 of 2024; Woragus Farm Limited v KWS.
13. Relying on Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others it is stated that the appeal shall be rendered nugatory if the matter is allowed to proceed as it would negate the practical utility of a successful appeal.
That should the appellate court find that the lower court proceeded without jurisdiction, then the proceedings conducted in the lower court would be a nullity. And the Applicant will have suffered protracted litigation, incurred substantial public expenditure, and expended judicial time in proceedings that are void in law.
14. For the Respondent, it is submitted that the application for stay is misconceived in law, unsupported by applicable jurisprudence and intended to delay expeditious disposal of the suits in the lower court.
15. That on the question of jurisdiction the Supreme Court of Kenya in Wildlife Service v Rift Valley Agricultural Contractors Ltd (2018) eKLR settled the law that the statutory duty imposed upon the Kenya Wildlife Service is actionable at common law and that the absence of an express statutory remedy does not bar an aggrieved party from approaching a court of law for relief.
16. That stay of proceedings must be distinguished from stay of execution as it is a grave and drastic judicial action which directly interferes with a litigant’s right to prosecute a case to logical conclusion. That in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR the court held that stay of proceedings is a grave judicial action.
17. On the question of stay of proceedings being a matter of judicial discretion that should be exercised in the interest of justice, reliance is placed in Global Tours & Travels Ltd Nrb. HCCC winding up Cause No. 43 of 2000.
18. That the Applicant has failed to demonstrate that the intended appeal raises arguable issues warranting the drastic interruption of the proceedings. That the question of lack of jurisdiction has already been settled by superior courts. That no exceptional circumstances have been disclosed to justify halting the subordinate court proceedings. And, the Respondent will suffer prejudice through delayed and continued denial of the right to expeditious disposal of the claim if the stay sought is granted and the doctrine of exhaustion is inapplicable in the circumstances.
19. I have considered the application, affidavits in support and opposition, rival submissions and a myriad of authorities cited. All the arguments put forth crystalize in the question whether stay of proceedings should be granted. This court is seized of judicial discretion which must be judiciously exercised.
20. Granting an order staying proceedings results into temporary suspension of the same which must be done on sound grounds. Although the power to do so is discretionary, the complexity of the matter should not be overshadowed. Order 42 Rule 6 stipulates;
(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2)No order for stay of execution shall be made under subrule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
21. An appeal does not automatically stay proceedings. In Global Tours & Travels Limited, Nairobi HCCC winding up Case No. 43 of 2000 Ringera J (as he then was) stated that;
“The court exercises discretion in considering stay of proceedings and must weigh the pros and cons of granting or not granting the order. It must consider the need for expeditious disposal of cases, the arguability of the appeal, and whether the appeal would be rendered nugatory.”
22. Global Tours & Travel Limited v Five Continents Travel Limited, [2015] eKLR the court held that;
“....Whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interests of justice. Such discretion is unlimited save that by virtue of its character as a judicial discretion; it should be exercised rationally and not capriciously or whimsically. The sole question is whether, it is in the interests of justice to order a stay of proceedings, and if it is, on what terms it should be granted. In deciding whether to order a stay the court should essentially weigh the pros and cons of granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of the case, 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 timeously.”
23. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR); the court held that;
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay, and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases... Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation...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 no cause of action in law or equity.....”
24. Principles of stay of proceedings were stated in the case of William Odhiambo Ramogi & 2 Others v Attorney General & 3 Others [2018] KEHC 9718(KLR) (5 Judge Bench) rendered itself thus;
“
a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.”
25. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another (1986) KECA 94 KLR it was stated;
“…. If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented....”
26. Considering at the parameters set, the Ruling of the trial court was delivered on 13 th January, 2026. The application herein was filed on 13 th February, 2026, a month later, the delay cannot be dismissed as having been inordinate.
27. The appeal was filed on the same date, 13 th the day of January, 2026. Looking at the grounds raised in the Memorandum of Appeal, this court will be interrogating whether or not the Magistrates Court has jurisdiction to determine matters before exhaustion of administrative process established under Wildlife Conservation and Management Act. This is a legitimate arguable ground of appeal.
28. The Respondents approached the trial court pleading tortious acts of the negligence by the Defendant by neglecting to maintain/confine the wildlife within its habitat. Failure to stay the proceedings will definitely render the appeal nugatory.
29. On the question of exceptional circumstances. In Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR) it was stated thus;
“..the principles for grant of stay of proceedings pending an interlocutory appeal as follows:
a. First, there must be an appeal pending before a higher court;
b. Second, where such stay is sought in the court hearing the case as opposed to the higher court to which the appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the court to which an appeal is preferred because such a court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.”
30. Notably, the appeal has been proffered in a higher court. This court has found that the appeal filed is arguable and not frivolous. Exceptional circumstances apparent disclose a jurisdictional question that should be addressed.
31. Having weighed all these issues, I find the application having merit. Accordingly, it is allowed.
32. No orders as to costs.
HCCA E001 OF 2026 (RUL.) Page 2 of 2
1. By a Notice of Motion dated 13 th day of February, 2026. The Applicant seeks orders thus:
i. Spent
ii. THAT this Honourable Court be pleased to Stay further proceedings together with all consequential orders thereto in WAMBA CMCC NO E097 OF 2026 (Formally MARALAL CMCC No. E103 OF 2025) (lead file), MARALAL CMCC Nos. E047 E046 E041 E059 E045 E054 E049 E044 E051 E058 E057 E061 E060 E052 E050 E070 E097 E002 E036 E034 E039 E031 E037 E027 E035 E032 E005 E030 E013 E021 E015 E008 E020 E017 E025 E040 E012 E038 E004 E083 E084 E067 E072 E071 EOOI E124 E123 E122 E121 E120 E115 E114 E115 E114 E113 EI 12 E109 E108 E107 E105 E086 E085 E040 E033 E024 E021 E018 E016 E050 E045 E044 E043 E042 E040 EOOI E002 E003 E006 E007 E008 E009 EOIO E011 E014 E016 E017 E018 E019 E020 E022 E023 E026 E027 E028 E029 EOSI E052 E053 E055 E056 E057 E058 E059 E060 E061 E062 E063 E064 E065 E066 E067 E068 E069 E070 E071 E072 E073 E074 E075 E076 E077 E078 E079 E080 E081 E082 E083 E084 E087 E088 E091 E092 E093 E094 E095 E096 E097 E098 E099 EIOO EIOI E102 E104 E106 E11O E111 E116 E117 E118 E119 E125 & E126 OF 2025 & 2026 pending hearing and determination of this Appeal.
2. The substratum of the application is that:-
a) On 13 th February, 2026 the Honourable Court delivered its ruling dismissing the Appellant’s Notice of Preliminary Objection dated 23 rd January, 2026 on jurisdiction of the court to entertain Wamba CMCC No.E097 of 2026 (formally MARALAL CMCC No.E103 OF 2025) (lead file) together with 153 related claims.
b) The Appellant being aggrieved with the said ruling, filed an appeal on 13 th February, 2026.
c) It is highly probable that if an order for stay of proceedings together with all consequential orders is not granted, Wamba CMCC No.E097 of 2026 (formally MARALAL CMCC No.E103 OF 2025) (lead file) together with 153 related claims will proceed for hearing on 16 th February, 2026 thus rendering the appeal nugatory.
d) The Appellant has an arguable appeal which is not frivolous as set out in the Memorandum of Appeal dated 13 th February, 2026 annexed herewith.
e) That the application has been brought without unreasonable delay.
f) There will be no prejudice occasioned to the Respondent(s) herein and those in 153 related claims, should this Honourable Court grant the orders sought.
3. Further, the application is supported by an affidavit deponed by Mr. Leon Kalisto, the advocate in conduct of the matter who avers that compensation procedure laid down in Nyeri Civil Appeal No.E030 of 2020, Kenya Wildlife Service –vs- Purity Kanini hence claims in Wamba CMCC No.E097 of 2026 (Formerly Maralal CMCC No.E102 of 2025 (lead file) together with 153 related claims have been filed prematurely as the Respondent(s) are yet to exhaust the compensation processes under Section 25 of the Wildlife Conservation and Management Act.
4. That having reported the alleged matter as stated in the plaint, the Respondent(s) should at the outset have sought redress from the County Conservation and Compensation Committee (CWCC). That a Preliminary Objection on Jurisdiction of the court to entertain the matter by the court raised was dismissed and being aggrieved and dissatisfied by the ruling the Applicant has appealed.
5. That the Applicant is apprehensive that if the order for stay of proceedings is not granted the lower court will proceed with the matter hence render the appeal nugatory. That the appeal has good prospects of success; the application has been filed without delay and no prejudice shall be suffered by the Respondent(s) if the order sought is granted.
6. In response thereto, the Respondent in opposing the application depones that in dismissing the Applicant’s Preliminary Objection on jurisdiction the trial court arrived at a reasoned decision. That points raised have already been determined by the Supreme Court. That stay of proceedings is a serious, grave and fundamental interference with the right of any party.
7. That the Applicant has failed to demonstrate that the intended appeal raises arguable or weighty issues that justify interruption of ongoing proceedings; that it will suffer irreparable or substantial loss if proceedings in the subordinate court proceed to hearing; and, that the Respondents and other claimants whose matters have been pending for some time and involve compensation for injuries and loss arising from wildlife attacks will suffer prejudice if stay is granted.
8. That the Applicant’s contention that the Respondent failed to exhaust statutory compensation mechanisms is a matter that was fully canvassed before the trial court and determined.
9. The application was canvassed through written submissions. It is urged by the Applicant that the application has met the threshold for grant of stay of proceedings.
10. It is acknowledged that granting the order sought is discretionary. Reliance is placed on the case of Global Tours and Travel Limited v Five Continents Travel Limited;
11. In arguing that the Applicant must demonstrate that the appeal is arguable, reliance is placed on the case of David Morton Silverstein v Atsango Chesoni;
12. It is submitted that the memorandum of appeal raises serious bonafide questions of law particularly challenging the Magistrate’s finding that Section 25 of the Wildlife Conservation & Management Act is merely optional and the claimant may elect to bypass the statutory compensation framework and institute a claim in tort before a civil court. That the Respondent is estopped from filing these suits before exhausting the compensation mechanisms under Section 25 of the Wildlife Conservation Management Act. Reliance is placed on Nanyuki HCCC No. E003 of 2024; Woragus Farm Limited v KWS.
13. Relying on Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others it is stated that the appeal shall be rendered nugatory if the matter is allowed to proceed as it would negate the practical utility of a successful appeal.
That should the appellate court find that the lower court proceeded without jurisdiction, then the proceedings conducted in the lower court would be a nullity. And the Applicant will have suffered protracted litigation, incurred substantial public expenditure, and expended judicial time in proceedings that are void in law.
14. For the Respondent, it is submitted that the application for stay is misconceived in law, unsupported by applicable jurisprudence and intended to delay expeditious disposal of the suits in the lower court.
15. That on the question of jurisdiction the Supreme Court of Kenya in Wildlife Service v Rift Valley Agricultural Contractors Ltd (2018) eKLR settled the law that the statutory duty imposed upon the Kenya Wildlife Service is actionable at common law and that the absence of an express statutory remedy does not bar an aggrieved party from approaching a court of law for relief.
16. That stay of proceedings must be distinguished from stay of execution as it is a grave and drastic judicial action which directly interferes with a litigant’s right to prosecute a case to logical conclusion. That in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR the court held that stay of proceedings is a grave judicial action.
17. On the question of stay of proceedings being a matter of judicial discretion that should be exercised in the interest of justice, reliance is placed in Global Tours & Travels Ltd Nrb. HCCC winding up Cause No. 43 of 2000.
18. That the Applicant has failed to demonstrate that the intended appeal raises arguable issues warranting the drastic interruption of the proceedings. That the question of lack of jurisdiction has already been settled by superior courts. That no exceptional circumstances have been disclosed to justify halting the subordinate court proceedings. And, the Respondent will suffer prejudice through delayed and continued denial of the right to expeditious disposal of the claim if the stay sought is granted and the doctrine of exhaustion is inapplicable in the circumstances.
19. I have considered the application, affidavits in support and opposition, rival submissions and a myriad of authorities cited. All the arguments put forth crystalize in the question whether stay of proceedings should be granted. This court is seized of judicial discretion which must be judiciously exercised.
20. Granting an order staying proceedings results into temporary suspension of the same which must be done on sound grounds. Although the power to do so is discretionary, the complexity of the matter should not be overshadowed. Order 42 Rule 6 stipulates;
(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2)No order for stay of execution shall be made under subrule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
21. An appeal does not automatically stay proceedings. In Global Tours & Travels Limited, Nairobi HCCC winding up Case No. 43 of 2000 Ringera J (as he then was) stated that;
“The court exercises discretion in considering stay of proceedings and must weigh the pros and cons of granting or not granting the order. It must consider the need for expeditious disposal of cases, the arguability of the appeal, and whether the appeal would be rendered nugatory.”
22. Global Tours & Travel Limited v Five Continents Travel Limited, [2015] eKLR the court held that;
“....Whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interests of justice. Such discretion is unlimited save that by virtue of its character as a judicial discretion; it should be exercised rationally and not capriciously or whimsically. The sole question is whether, it is in the interests of justice to order a stay of proceedings, and if it is, on what terms it should be granted. In deciding whether to order a stay the court should essentially weigh the pros and cons of granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of the case, 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 timeously.”
23. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR); the court held that;
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay, and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases... Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation...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 no cause of action in law or equity.....”
24. Principles of stay of proceedings were stated in the case of William Odhiambo Ramogi & 2 Others v Attorney General & 3 Others [2018] KEHC 9718(KLR) (5 Judge Bench) rendered itself thus;
“
a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.”
25. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another (1986) KECA 94 KLR it was stated;
“…. If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented....”
26. Considering at the parameters set, the Ruling of the trial court was delivered on 13 th January, 2026. The application herein was filed on 13 th February, 2026, a month later, the delay cannot be dismissed as having been inordinate.
27. The appeal was filed on the same date, 13 th the day of January, 2026. Looking at the grounds raised in the Memorandum of Appeal, this court will be interrogating whether or not the Magistrates Court has jurisdiction to determine matters before exhaustion of administrative process established under Wildlife Conservation and Management Act. This is a legitimate arguable ground of appeal.
28. The Respondents approached the trial court pleading tortious acts of the negligence by the Defendant by neglecting to maintain/confine the wildlife within its habitat. Failure to stay the proceedings will definitely render the appeal nugatory.
29. On the question of exceptional circumstances. In Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR) it was stated thus;
“..the principles for grant of stay of proceedings pending an interlocutory appeal as follows:
a. First, there must be an appeal pending before a higher court;
b. Second, where such stay is sought in the court hearing the case as opposed to the higher court to which the appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the court to which an appeal is preferred because such a court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.”
30. Notably, the appeal has been proffered in a higher court. This court has found that the appeal filed is arguable and not frivolous. Exceptional circumstances apparent disclose a jurisdictional question that should be addressed.
31. Having weighed all these issues, I find the application having merit. Accordingly, it is allowed.
32. No orders as to costs.
HCCA E001 OF 2026 (RUL.) Page 2 of 2