1. The Defendant had filed a Notice of Preliminary Objection dated 14/05/2025 on grounds that this court lacked jurisdiction to hear and determine this suit for failure of the Plaintiff to comply with Order 5, Rules 25 and 27 of the Civil Procedure Rules on service of a foreign Defendant. Through the ruling dated 12/02/2025, this court dismissed the Preliminary Objection for lack of merits.
2. It is pursuant to that ruling that the Defendant filed the Notice of Motion dated 23/03/2026 subject to this ruling. The Defendant seeks to have stay of the proceedings herein pending the hearing and determination of the appeal against the above mentioned ruling of this court. In support of the application, it was stated that the appeal is challenging the jurisdiction of this court, and failure to grant stay orders would render the substratum of the appeal nugatory.
3. In response to the application, the Plaintiff filed Grounds of Opposition dated 22/04/2026 and the Replying Affidavit dated 30th April, 2026. It was stated that the application failed to meet the threshold for the grant of stay of proceedings under Order 42, Rule 6 of the Civil Procedure Rules, by granting stay of proceedings, the Plaintiff’s constitutional right of access to justice under Article 48 of the Constitution. The Applicant had not established any grounds to warrant the stay orders, and that the issue of jurisdiction had conclusively been determined.
4. The Plaintiff further stated that the mere filing if an appeal does not warrant an automatic stay of proceedings. The Plaintiff would suffer irreparable prejudice if the orders as prayed are granted. The Plaintiff prayed to have the application dismissed with costs.
5. The Defendant filed a Further Affidavit dated 13/05/2026 reiterated the contents of the application and supporting affidavit save to add by stating that the question of jurisdiction ought to be considered before the matter proceeds for hearing and determination.
6. Parties were directed to file written submissions. Both parties were in compliance of the same. The Defendant/ Applicant filed the submissions dated 13/05/2026, and the Plaintiff/ Respondent filed the submissions dated 09/06/2026, which I have considered.
Analysis
7. I have perused through the application, the responses and the rival submissions filed. The issues before me are;
a. Whether proceedings should be stayed pending hearing and determination of the appeal
b. Who bears the costs.
8. On stay of proceedings, the exercise of that discretion should be premised on conscientious and judicious decision based on defined principles which were expounded by Ringera J in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000:-
“As I understand the law, 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 interest of justice ……the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, 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 or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”
9. Further, in the case of Kenya Wildlife Service-vs-James Mutembei [2019] eKLR, it was held that:
“ ...Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent..."
10. The stay of proceedings is provided under Order 42 Rule 6(1) of the Civil Procedure Rules, it provides as follows;
“(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.”
12. In determining this Application, the main objective is to achieve justice for both parties. In Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal articulated that:
“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.
For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” (emphasis added).
13. The Defendant has already filed an appeal against the ruling of this court dated 12/02/2026. This court must balance the interest of the Defendant/ Applicant in the event the appeal is determined in their favour. On the other hand, the interests of the Plaintiff/ Respondent to prosecute its claim must be considered as it must not be denied the right of access to justice.
14. The appeal is on the jurisdiction of this court to hear and determine this suit. In the case of Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR 1, it was stated as follows;
“Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence, and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.”
15. The issue of jurisdiction is fundamental and the same ought to be determined before this court proceeds further in the matter, I take note that the Defendant has already filed the Record of Appeal, before the Court of Appeal. There is no delay on the part of the Defendant in filing the appeal. I find no prejudice that shall be occasioned on the Plaintiff pending the determination of the appeal on jurisdiction of this court to proceed with the hearing and determination of this suit.
16. On costs, the same follows the event. However, the court retains discretion whether to award the same or not. There being an appeal on record, the costs of this application shall follow the outcome of the appeal.
Determination
17. Following the foregone discourse, the upshot is that the following orders do hereby issue: -
(a) That there be stay of proceedings pending the hearing and determination of the appeal before the Court of Appeal.
(b) Costs to abide the outcome of the appeal.
It is so ordered.
Date and delivered virtually at Mombasa on this 6th day of August, 2026.
………………….
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of:-
Ms. Kimani Advocate h/b for Ms. Nzamsa Advocate for the Plaintiff/ Respondent.
Mr. Mrima Advocate h/b for Ms. Akwana Advocate for the Defendant/ Applicant
Ms. Salwa, Court Assistant
2. It is pursuant to that ruling that the Defendant filed the Notice of Motion dated 23/03/2026 subject to this ruling. The Defendant seeks to have stay of the proceedings herein pending the hearing and determination of the appeal against the above mentioned ruling of this court. In support of the application, it was stated that the appeal is challenging the jurisdiction of this court, and failure to grant stay orders would render the substratum of the appeal nugatory.
3. In response to the application, the Plaintiff filed Grounds of Opposition dated 22/04/2026 and the Replying Affidavit dated 30th April, 2026. It was stated that the application failed to meet the threshold for the grant of stay of proceedings under Order 42, Rule 6 of the Civil Procedure Rules, by granting stay of proceedings, the Plaintiff’s constitutional right of access to justice under Article 48 of the Constitution. The Applicant had not established any grounds to warrant the stay orders, and that the issue of jurisdiction had conclusively been determined.
4. The Plaintiff further stated that the mere filing if an appeal does not warrant an automatic stay of proceedings. The Plaintiff would suffer irreparable prejudice if the orders as prayed are granted. The Plaintiff prayed to have the application dismissed with costs.
5. The Defendant filed a Further Affidavit dated 13/05/2026 reiterated the contents of the application and supporting affidavit save to add by stating that the question of jurisdiction ought to be considered before the matter proceeds for hearing and determination.
6. Parties were directed to file written submissions. Both parties were in compliance of the same. The Defendant/ Applicant filed the submissions dated 13/05/2026, and the Plaintiff/ Respondent filed the submissions dated 09/06/2026, which I have considered.
Analysis
7. I have perused through the application, the responses and the rival submissions filed. The issues before me are;
a. Whether proceedings should be stayed pending hearing and determination of the appeal
b. Who bears the costs.
8. On stay of proceedings, the exercise of that discretion should be premised on conscientious and judicious decision based on defined principles which were expounded by Ringera J in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000:-
“As I understand the law, 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 interest of justice ……the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, 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 or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”
9. Further, in the case of Kenya Wildlife Service-vs-James Mutembei [2019] eKLR, it was held that:
“ ...Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent..."
10. The stay of proceedings is provided under Order 42 Rule 6(1) of the Civil Procedure Rules, it provides as follows;
“(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.”
12. In determining this Application, the main objective is to achieve justice for both parties. In Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal articulated that:
“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.
For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” (emphasis added).
13. The Defendant has already filed an appeal against the ruling of this court dated 12/02/2026. This court must balance the interest of the Defendant/ Applicant in the event the appeal is determined in their favour. On the other hand, the interests of the Plaintiff/ Respondent to prosecute its claim must be considered as it must not be denied the right of access to justice.
14. The appeal is on the jurisdiction of this court to hear and determine this suit. In the case of Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR 1, it was stated as follows;
“Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence, and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.”
15. The issue of jurisdiction is fundamental and the same ought to be determined before this court proceeds further in the matter, I take note that the Defendant has already filed the Record of Appeal, before the Court of Appeal. There is no delay on the part of the Defendant in filing the appeal. I find no prejudice that shall be occasioned on the Plaintiff pending the determination of the appeal on jurisdiction of this court to proceed with the hearing and determination of this suit.
16. On costs, the same follows the event. However, the court retains discretion whether to award the same or not. There being an appeal on record, the costs of this application shall follow the outcome of the appeal.
Determination
17. Following the foregone discourse, the upshot is that the following orders do hereby issue: -
(a) That there be stay of proceedings pending the hearing and determination of the appeal before the Court of Appeal.
(b) Costs to abide the outcome of the appeal.
It is so ordered.
Date and delivered virtually at Mombasa on this 6th day of August, 2026.
………………….
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of:-
Ms. Kimani Advocate h/b for Ms. Nzamsa Advocate for the Plaintiff/ Respondent.
Mr. Mrima Advocate h/b for Ms. Akwana Advocate for the Defendant/ Applicant
Ms. Salwa, Court Assistant