RULING
(On whether an application for stay of proceedings pending appeal filed in a superior Court before filing a similar one in the trial court complies with Order 42 Rule 6 of the Civil Procedure Rules, 2010)
Background
1. The Appellants/applicants filed a Memorandum of Appeal dated 14th May, 2026. On 1st June 2026, they filed an application supported by an Affidavit sworn by the 2nd Appellant on the same date. They moved this Court under Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A,1B, 3, 3A, 63(e) of the Civil Procedure Act, Cap 21; and Article 159(2)(d) of the Constitution of Kenya, 2010. They sought the following orders:-
1. .…Spent.
2. …Spent.
3. THAT upon the inter-partes hearing of this Application, this Honourable Court be pleased to grant an order staying all further proceedings in Kehancha Magistrate Court ELC Case No. E014 of 2025 pending the hearing and determination of the Appellants’ Appeal being Migori ELC Appeal No. E008 of 2026.
4. THAT the costs of this Application be provided for.
2. Immediately after the ex parte stage of the application the court invited the parties to address it, as a preliminary issue, on the compliance of the application with Order 42 Rule 6 of the Civil Procedure Rules, 2010.
Arguments of the Parties.
3. The Applicants submitted that they made an oral application before the trial court whereby they sought a stay of proceedings pending the hearing and determination of the appeal. They contended that the trial court declined to grant the orders sought. Further, that owing to the imminent hearing date in the subordinate court, they did not have sufficient time to file a formal application for stay before that court. They further argued that, pursuant to Order 42 Rule 6 of the Civil Procedure Rules, 2010, an application for stay of proceedings may be made either before the court appealed from or before the appellate court. Consequently, they maintained that, having duly lodged the appeal before this Court, the present application was properly before the appellate court. They also urged the court to exercise discretion in the matter.
4. The Respondent opposed the application. They submitted that the Applicants failed to make a formal application before the trial court to seek a stay of proceedings pending the hearing and determination of the appeal, contrary to the procedure contemplated under Order 42 Rule 6 of the Civil Procedure Rules. He further contended that the suit before the subordinate court remained active: it was scheduled for hearing on 5th August 2026. As such, there were no proceedings capable of being stayed at this stage. The Respondent also urged the Court to dismiss the present application for stay under Order 42 Rule 6 of the Civil Procedure Rules.
Issues, Analysis and Determination
5. The main issue for determination in this application is whether the appellant’s/applicant’s stay of proceedings application complies with Order 42 Rule 6 of the Civil Procedure Rules, considering one seeking similar orders was not filed at the trial court first. The court will also determine who should bear the costs of the application.
6. Order 42 of the Civil Procedure Rules, in particular, Order 42 Rule 6(1), provides that:
“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.”
7. A grammatical and plain interpretation of the Rule renders the effect of the provision that an Appellant aggrieved by an order or decree of a subordinate Court either on a first appeal (where the appeal is first) or on a second appeal (where the appeal is preferred as a second one in case there was an earlier one to a Court subordinate to the Superior Court) and decides to move the Appellate/ Superior Court for stay of proceedings or execution, he/she/it should have moved the court appealed from for similar orders first. This would then give the appellate court the chance to either set aside the orders of the subordinate court. The above provisions are couched in mandatory terms. Only upon fulfillment of that step does the Superior Court become seized of jurisdiction to handle an application for stay of proceedings or execution. This provision and procedure should not be confused with the one at the Court of Appeal and the Supreme Court which have different Rules of procedure. This before this Court is clearly provided for in the sub-Rule that “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.”
8. The import of the aforestated provision is that an Appellant can only apply to the Appellate Court to set aside the order (of stay of execution or proceedings) of the court appealed from if he/she/it is aggrieved by such an order. It means further that he/she/it or the adverse party must have moved the subordinate Court, the Court shall have rendered itself on the application, and the party is aggrieved by the decision of that Court and moves the Appellate Court. As such, an appellant ought not, and should never side-step, the subordinate court and attempt successfully to move the appellant for orders he/she should have sought formally in that court. If not, and in case a party moves straight to the appellate Court for the orders, such conduct is akin to forum shopping and undermines the orderly administration of justice and the rule of law.
9. Laws are enacted to ensure order, consistency, and predictability in the conduct of legal proceedings, thereby guarding against arbitrariness. Although rules of procedure should not be applied in a manner that elevates technicality over substantive justice or unduly fetters the exercise of judicial discretion, they exist to promote fairness, orderliness, and the just determination of disputes. It would be a regrettable departure from the judicial oath for courts to sanction or encourage non-compliance with the very laws and procedures they are entrusted to uphold. Thus, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR), Kiage JA held:
“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”
10. From the foregoing excerpt, it is evident that both substantive and procedural law, as well as all other laws that are constitutionally valid, bind upon and must be observed by all persons within the Republic. Thus, in regard to compliance with Order 42 Rule 6(1) of the Civil Procedure Rules, the learned Judge in Vipingo Ridge Limited v Swalehe Ngonge Mpitta [2021] KEELRC 616 (KLR) held:-
“A plain reading of the provision requires that before an Applicant seeking stay pending appeal moves the appellate court for stay orders, he/she must first have applied for the orders before the trial court. And there must be evidence that the trial court pronounced itself on the application whether it granted or declined to grant it. It appears to me therefore that it would be irregular for such applicant to move the appellate court without first approaching the trial court on the matter and the trial court pronouncing itself on it one way or the other.”
11. Equally, in Pius Mbithi & Veronicah Wachira v Daniel Mutiria & Biasha Hamisi [2017] KEHC 752 (KLR), it was held that:
“I read and understand the rule to dictate that the first port of call by an application for stay pending appeal is the trial court and that once it considers and determines the application then an aggrieved party has the liberty to approach this court and have the orders so issued set aside. Put in the context of the matter before me it is clear that the trial court has not been afforded the opportunity to hear and determine any application for stay. That being the position, and being a court of law applying the law as enacted, this court must tell the applicant that the law is for all to be observed and not be side-stepped. I am in no doubt that the application seeking stay before this court as the appellate court is prematurely made and does not lie.”
12. Additionally, in Mwangi v Mokaya (Environment and Land Appeal 17 of 2022) [2022] KEELC 14835 (KLR) (17 November 2022) (Ruling) this Court held that
“A plain grammatical or textual reading of this terminology reading of the text above, particularly, the underlined phrase is to the effect that a party is not permitted to skip the must important point as the first point of call: the respective trial magistrate or judge against whose order or judgment an appeal is preferred. After he or she has moved the Court and his Application is granted or not, depending on how he views the decision, then he/she will file another application in the Court appealed to. It is upon this step having been taken that the application for stay of proceedings in the trial can be considered by the appellate Court. Absent of this step, the application filed for stay of execution or proceedings directly to the appealed to is improper.”
13. Lastly, in Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2023] KEELC 21845 (KLR) (24 November 2023) (Ruling), this Court, in addressing a similar point of law, held as follows:
“This Court has, for reason of emphasis, underlined the relevant phrases in the provision in relation to the instant Application. The above Rule is to the effect that before an Appellant aggrieved by an order or decree of a subordinate Court moves the Appellate Court either on a first appeal (where the appeal is first) or on a second appeal (where the appeal is preferred as a second one in case there was an earlier one to a Court subordinate to the Superior Court) moves the Superior Court for stay of proceedings or execution he/she/it should have moved the court appealed from for similar orders. This is not optional but a compulsory step. Only upon fulfillment of that step shall the Superior Court be seized of jurisdiction to handle an application for stay of proceedings or execution. This is clearly provided for in the sub-rule that “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.”
14. In the instant Application, it is clear and it was admitted that no formal application was made in the trial court. While Order 42 Rule 6 of the Civil Procedure Rules confers jurisdiction upon both the trial court and the appellate court to entertain an application for stay of proceedings pending appeal, the procedure envisaged under the Rule requires that a party first invokes the jurisdiction of the court appealed from through a formal application. It must be in that sequence and not either. The mere fact that the Appellants claimed to have made an oral request, which was declined, did not absolve them of the obligation to file a substantive application before the trial court.
15. The upshot of the foregoing is that this Court will not delve into the merits of the instant application, having found it to be incompetent. Accordingly, the application is hereby struck out.
16. Each party to bear their own costs.
17. Orders accordingly.
Ruling dated, signed and delivered virtually via the Teams Platform this 22nd July 2026.
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Court Clerk: Lola
Kijana Advocate for the Appellants.
Owino Advocate for Respondents.
(On whether an application for stay of proceedings pending appeal filed in a superior Court before filing a similar one in the trial court complies with Order 42 Rule 6 of the Civil Procedure Rules, 2010)
Background
1. The Appellants/applicants filed a Memorandum of Appeal dated 14th May, 2026. On 1st June 2026, they filed an application supported by an Affidavit sworn by the 2nd Appellant on the same date. They moved this Court under Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A,1B, 3, 3A, 63(e) of the Civil Procedure Act, Cap 21; and Article 159(2)(d) of the Constitution of Kenya, 2010. They sought the following orders:-
1. .…Spent.
2. …Spent.
3. THAT upon the inter-partes hearing of this Application, this Honourable Court be pleased to grant an order staying all further proceedings in Kehancha Magistrate Court ELC Case No. E014 of 2025 pending the hearing and determination of the Appellants’ Appeal being Migori ELC Appeal No. E008 of 2026.
4. THAT the costs of this Application be provided for.
2. Immediately after the ex parte stage of the application the court invited the parties to address it, as a preliminary issue, on the compliance of the application with Order 42 Rule 6 of the Civil Procedure Rules, 2010.
Arguments of the Parties.
3. The Applicants submitted that they made an oral application before the trial court whereby they sought a stay of proceedings pending the hearing and determination of the appeal. They contended that the trial court declined to grant the orders sought. Further, that owing to the imminent hearing date in the subordinate court, they did not have sufficient time to file a formal application for stay before that court. They further argued that, pursuant to Order 42 Rule 6 of the Civil Procedure Rules, 2010, an application for stay of proceedings may be made either before the court appealed from or before the appellate court. Consequently, they maintained that, having duly lodged the appeal before this Court, the present application was properly before the appellate court. They also urged the court to exercise discretion in the matter.
4. The Respondent opposed the application. They submitted that the Applicants failed to make a formal application before the trial court to seek a stay of proceedings pending the hearing and determination of the appeal, contrary to the procedure contemplated under Order 42 Rule 6 of the Civil Procedure Rules. He further contended that the suit before the subordinate court remained active: it was scheduled for hearing on 5th August 2026. As such, there were no proceedings capable of being stayed at this stage. The Respondent also urged the Court to dismiss the present application for stay under Order 42 Rule 6 of the Civil Procedure Rules.
Issues, Analysis and Determination
5. The main issue for determination in this application is whether the appellant’s/applicant’s stay of proceedings application complies with Order 42 Rule 6 of the Civil Procedure Rules, considering one seeking similar orders was not filed at the trial court first. The court will also determine who should bear the costs of the application.
6. Order 42 of the Civil Procedure Rules, in particular, Order 42 Rule 6(1), provides that:
“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.”
7. A grammatical and plain interpretation of the Rule renders the effect of the provision that an Appellant aggrieved by an order or decree of a subordinate Court either on a first appeal (where the appeal is first) or on a second appeal (where the appeal is preferred as a second one in case there was an earlier one to a Court subordinate to the Superior Court) and decides to move the Appellate/ Superior Court for stay of proceedings or execution, he/she/it should have moved the court appealed from for similar orders first. This would then give the appellate court the chance to either set aside the orders of the subordinate court. The above provisions are couched in mandatory terms. Only upon fulfillment of that step does the Superior Court become seized of jurisdiction to handle an application for stay of proceedings or execution. This provision and procedure should not be confused with the one at the Court of Appeal and the Supreme Court which have different Rules of procedure. This before this Court is clearly provided for in the sub-Rule that “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.”
8. The import of the aforestated provision is that an Appellant can only apply to the Appellate Court to set aside the order (of stay of execution or proceedings) of the court appealed from if he/she/it is aggrieved by such an order. It means further that he/she/it or the adverse party must have moved the subordinate Court, the Court shall have rendered itself on the application, and the party is aggrieved by the decision of that Court and moves the Appellate Court. As such, an appellant ought not, and should never side-step, the subordinate court and attempt successfully to move the appellant for orders he/she should have sought formally in that court. If not, and in case a party moves straight to the appellate Court for the orders, such conduct is akin to forum shopping and undermines the orderly administration of justice and the rule of law.
9. Laws are enacted to ensure order, consistency, and predictability in the conduct of legal proceedings, thereby guarding against arbitrariness. Although rules of procedure should not be applied in a manner that elevates technicality over substantive justice or unduly fetters the exercise of judicial discretion, they exist to promote fairness, orderliness, and the just determination of disputes. It would be a regrettable departure from the judicial oath for courts to sanction or encourage non-compliance with the very laws and procedures they are entrusted to uphold. Thus, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR), Kiage JA held:
“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”
10. From the foregoing excerpt, it is evident that both substantive and procedural law, as well as all other laws that are constitutionally valid, bind upon and must be observed by all persons within the Republic. Thus, in regard to compliance with Order 42 Rule 6(1) of the Civil Procedure Rules, the learned Judge in Vipingo Ridge Limited v Swalehe Ngonge Mpitta [2021] KEELRC 616 (KLR) held:-
“A plain reading of the provision requires that before an Applicant seeking stay pending appeal moves the appellate court for stay orders, he/she must first have applied for the orders before the trial court. And there must be evidence that the trial court pronounced itself on the application whether it granted or declined to grant it. It appears to me therefore that it would be irregular for such applicant to move the appellate court without first approaching the trial court on the matter and the trial court pronouncing itself on it one way or the other.”
11. Equally, in Pius Mbithi & Veronicah Wachira v Daniel Mutiria & Biasha Hamisi [2017] KEHC 752 (KLR), it was held that:
“I read and understand the rule to dictate that the first port of call by an application for stay pending appeal is the trial court and that once it considers and determines the application then an aggrieved party has the liberty to approach this court and have the orders so issued set aside. Put in the context of the matter before me it is clear that the trial court has not been afforded the opportunity to hear and determine any application for stay. That being the position, and being a court of law applying the law as enacted, this court must tell the applicant that the law is for all to be observed and not be side-stepped. I am in no doubt that the application seeking stay before this court as the appellate court is prematurely made and does not lie.”
12. Additionally, in Mwangi v Mokaya (Environment and Land Appeal 17 of 2022) [2022] KEELC 14835 (KLR) (17 November 2022) (Ruling) this Court held that
“A plain grammatical or textual reading of this terminology reading of the text above, particularly, the underlined phrase is to the effect that a party is not permitted to skip the must important point as the first point of call: the respective trial magistrate or judge against whose order or judgment an appeal is preferred. After he or she has moved the Court and his Application is granted or not, depending on how he views the decision, then he/she will file another application in the Court appealed to. It is upon this step having been taken that the application for stay of proceedings in the trial can be considered by the appellate Court. Absent of this step, the application filed for stay of execution or proceedings directly to the appealed to is improper.”
13. Lastly, in Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2023] KEELC 21845 (KLR) (24 November 2023) (Ruling), this Court, in addressing a similar point of law, held as follows:
“This Court has, for reason of emphasis, underlined the relevant phrases in the provision in relation to the instant Application. The above Rule is to the effect that before an Appellant aggrieved by an order or decree of a subordinate Court moves the Appellate Court either on a first appeal (where the appeal is first) or on a second appeal (where the appeal is preferred as a second one in case there was an earlier one to a Court subordinate to the Superior Court) moves the Superior Court for stay of proceedings or execution he/she/it should have moved the court appealed from for similar orders. This is not optional but a compulsory step. Only upon fulfillment of that step shall the Superior Court be seized of jurisdiction to handle an application for stay of proceedings or execution. This is clearly provided for in the sub-rule that “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.”
14. In the instant Application, it is clear and it was admitted that no formal application was made in the trial court. While Order 42 Rule 6 of the Civil Procedure Rules confers jurisdiction upon both the trial court and the appellate court to entertain an application for stay of proceedings pending appeal, the procedure envisaged under the Rule requires that a party first invokes the jurisdiction of the court appealed from through a formal application. It must be in that sequence and not either. The mere fact that the Appellants claimed to have made an oral request, which was declined, did not absolve them of the obligation to file a substantive application before the trial court.
15. The upshot of the foregoing is that this Court will not delve into the merits of the instant application, having found it to be incompetent. Accordingly, the application is hereby struck out.
16. Each party to bear their own costs.
17. Orders accordingly.
Ruling dated, signed and delivered virtually via the Teams Platform this 22nd July 2026.
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Court Clerk: Lola
Kijana Advocate for the Appellants.
Owino Advocate for Respondents.