RULING
1. Ngumbao Mkamba the applicant/appellant herein has filed before this Court a Notice of Motion application dated 6th November 2025 seeking one substantive order that pending the hearing and determination of the appeal filed herein this court issues an order of stay of proceedings in Kwale MCCC No. E197 of 2025.
2. The application is filed under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6(1), (2), Order 51 Rule 1 of the Civil Procedure Rules and Article 159(2) of the Constitution of Kenya and all other enabling provisions of the law.
3. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 6th November 2025 by Martin Mutuku, the appellant/applicant.
4. The grounds, are that the respondent herein filed a suit before the Magistrate’s courts, MCCC No. E197 of 2025 as well as applications. The suit and applications are wholly anchored on a contract dated 23rd December 2024 between the applicant and the respondent which contains a mandatory arbitration clause in Clause 12.
5. Upon being served, the applicant filed a Notice of Preliminary Objection dated 16th October 2025 challenging the jurisdiction of the subordinate court to entertain the said suit and applications on the basis of Clause 12 of the contract between the parties, which provides for the resolution of disputes through arbitration. In a ruling delivered on 5th November 2025 in KWALE MCCC No. E197 of 2025 the trial court dismissed the applicant's preliminary objection on grounds that it did not raise a pure point of law which challenged the jurisdiction of the subordinate court on the basis of applicant avers that the arbitration clause ousts the jurisdiction of the magistrate’s court in the matter. Subsequent to the ruling, the trial court issued orders in terms of prayer number 2 of the Respondent's application dated 14th October 2025, and fixed the matter for inter partes hearing on 12th November 2025, thereby purporting to exercise jurisdiction which the court did not lawfully possess. That the impugned ruling, and the subsequent actions of the trial court are in excess of jurisdiction, ultra vires, and contrary to the express provisions of the Arbitration Act and Article 159(2)(c) of the Constitution which mandate the promotion of alternative dispute resolution mechanisms. The continuation of proceedings in the subordinate court will occasion grave prejudice to the applicant, as it would subject the applicant to a process that is contractually barred and constitutionally unsanctioned.
6. The appellant was aggrieved by that ruling and filed the appeal herein through the memorandum of appeal dated 6th November 2025 expressing his dissatisfaction with the ruling and praying that the ruling be set aside for reasons that the trial court erred in dismissing the preliminary objection and failing to give effect to the arbitration clause in the contract between the parties. The applicant deposes that the appeal raises serious questions of law touching on jurisdiction and the proper enforcement of arbitration agreements, which warrant the immediate intervention of this court. That the orders sought are intended to preserve the substratum of the dispute pending the hearing and determination of the appeal.
7. The respondent opposed the application through grounds of opposition dated 10th December 2025. Some of the grounds have been overtaken by events because they address orders that had been sought at the ex-parte stage; such as the prayer seeking stay of proceedings.
8. The respondent avers that the application does not meet the requirements for grant of an order of stay of proceedings under Order 42 Rule 6 CPR whose threshold is very high.
9. According to the respondent, the intended appeal lacks merit as the trial court correctly held that the issue of the arbitration clause contained in the contract could not be raised by way of a preliminary objection. Further that the arbitration clause does not automatically oust the jurisdiction of the court.
10. I have considered the application, the response thereto and the submissions by learned counsels for the parties. The issue for determination is whether the applicant herein has offered sufficient reasons to warrant this court to exercise its discretion to stay the proceedings before the trial court pending hearing and determination of the appeal.
11. Order 42 Rule 6(1) of the Civil Procedure Rules provides for stay of proceedings 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. It is apparent from this provision that the court to which an appeal is preferred has a wide discretion to grant an order of stay of proceedings since the rule provides that “... the court to which such an appeal is preferred shall be at liberty ... to consider such application and to make such order thereon as may to it seem just ...” Considering this provision, Ouko, J. (as he then was) in the case of Stepup Holdings (K) Limited V Mt. Kenya University [2012] KEHC 3957 (KLR) held that:
“I must emphasise again that the usual strictures that sufficient cause be shown and that no order of stay should be made unless there would be substantial loss, that the application has been made without unreasonable delay and that the applicant must provide security, are, on a plain reading of rule 6(1), applicable only to applications for stay of execution.”
13. The learned Judge emphasized on the manner of exercise of judicial discretion by stating that:
“Judicial discretion must be exercised in order to meet the interest of justice; exercised rationally, on sound principles of law and not arbitrarily or capriciously.”
14. Further emphasis on the difference in the requirements for stay of proceedings from those of stay of execution is provided in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated thus:
“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. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“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, 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” (emphasis added)
See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“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 proceeding beyond all 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 the case.”
15. The applicant raised a preliminary issue on the jurisdiction of the trial court to proceed with the case filed by the respondent before it in view of an arbitration clause in their contract. The lower court considered the preliminary objection and held that:
“... the applicant ought to have formally applied for a stay of proceedings at the time of entering appearance into the suit, and the same cannot be done suo moto by this court. Further, at this stage, the court cannot undertake to ascertain if the dispute between the parties exists and whether such dispute is within the scope of the arbitration agreement. That would be premature and defeat the whole purpose of a preliminary objection.”
16. The lower court thus found that the procedure adopted by the applicant in filing a preliminary objection rather than an application was inappropriate for the orders sought. The applicant is challenging that decision of the lower court, effectively seeking not to participate in the court’s proceedings before the matter is referred to arbitration.
17. Once again, Ouko, J. (as he then was) dealing with a similar scenario in the cited case of Stepup Holdings (K) Ltd (supra) held as follows:
“The effect of this court dismissing this application would be to allow the matter to proceed before the court and the applicant to participate when they have challenged that participation. It is indeed a question of jurisdiction which in my view must be determined by the outcome of the appeal. . .
I share the sentiments of the Justices of Appeal in Shashic Patel V. Damayantina Vin Shah, Civil Appeal No.236 of 2006 when they granted a stay of proceedings saying:
“It might be difficult if not impossible to get the matter to arbitration once it is heard by the superior court as there will remain nothing to go to arbitration by then. Common sense commands that as the question of whether to refer the matter to arbitration or not is still to be subject of an appeal or intended appeal in this court, the hearing in the superior court must be stayed to abide the outcome of this court’s decision on the intended appeal.”
18. There is no doubt that the issue raised by the applicant before the trial court is one of the jurisdiction of the court to proceed with the suit in view of an arbitration clause in the contract between the parties. It is only fair and just that the issue of jurisdiction be conclusively disposed of first.
19. There is no doubt that the appeal herein will inevitably delay the determination of the case before the trial court. However, considering that the issue of jurisdiction is a foundational one to the proper conduct of proceedings before any court, I find that a delay in seeking clarity on that issue from this court would not gravely prejudice the respondent.
20. Consequently, this court finds that the applicant’s notice of motion has merit and the same is allowed. The interim order issued by this court for stay of proceedings before the Kwale Magistrate’s Court Civil Case No. E197 of 2025 are hereby confirmed pending the hearing and determination of the appeal herein.
21. Costs shall be in the cause of the appeal.
22. Orders accordingly.
23. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 30th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Applicant/Appellant.
...for the Respondent.
Ummu: Court Assistant.
1. Ngumbao Mkamba the applicant/appellant herein has filed before this Court a Notice of Motion application dated 6th November 2025 seeking one substantive order that pending the hearing and determination of the appeal filed herein this court issues an order of stay of proceedings in Kwale MCCC No. E197 of 2025.
2. The application is filed under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6(1), (2), Order 51 Rule 1 of the Civil Procedure Rules and Article 159(2) of the Constitution of Kenya and all other enabling provisions of the law.
3. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 6th November 2025 by Martin Mutuku, the appellant/applicant.
4. The grounds, are that the respondent herein filed a suit before the Magistrate’s courts, MCCC No. E197 of 2025 as well as applications. The suit and applications are wholly anchored on a contract dated 23rd December 2024 between the applicant and the respondent which contains a mandatory arbitration clause in Clause 12.
5. Upon being served, the applicant filed a Notice of Preliminary Objection dated 16th October 2025 challenging the jurisdiction of the subordinate court to entertain the said suit and applications on the basis of Clause 12 of the contract between the parties, which provides for the resolution of disputes through arbitration. In a ruling delivered on 5th November 2025 in KWALE MCCC No. E197 of 2025 the trial court dismissed the applicant's preliminary objection on grounds that it did not raise a pure point of law which challenged the jurisdiction of the subordinate court on the basis of applicant avers that the arbitration clause ousts the jurisdiction of the magistrate’s court in the matter. Subsequent to the ruling, the trial court issued orders in terms of prayer number 2 of the Respondent's application dated 14th October 2025, and fixed the matter for inter partes hearing on 12th November 2025, thereby purporting to exercise jurisdiction which the court did not lawfully possess. That the impugned ruling, and the subsequent actions of the trial court are in excess of jurisdiction, ultra vires, and contrary to the express provisions of the Arbitration Act and Article 159(2)(c) of the Constitution which mandate the promotion of alternative dispute resolution mechanisms. The continuation of proceedings in the subordinate court will occasion grave prejudice to the applicant, as it would subject the applicant to a process that is contractually barred and constitutionally unsanctioned.
6. The appellant was aggrieved by that ruling and filed the appeal herein through the memorandum of appeal dated 6th November 2025 expressing his dissatisfaction with the ruling and praying that the ruling be set aside for reasons that the trial court erred in dismissing the preliminary objection and failing to give effect to the arbitration clause in the contract between the parties. The applicant deposes that the appeal raises serious questions of law touching on jurisdiction and the proper enforcement of arbitration agreements, which warrant the immediate intervention of this court. That the orders sought are intended to preserve the substratum of the dispute pending the hearing and determination of the appeal.
7. The respondent opposed the application through grounds of opposition dated 10th December 2025. Some of the grounds have been overtaken by events because they address orders that had been sought at the ex-parte stage; such as the prayer seeking stay of proceedings.
8. The respondent avers that the application does not meet the requirements for grant of an order of stay of proceedings under Order 42 Rule 6 CPR whose threshold is very high.
9. According to the respondent, the intended appeal lacks merit as the trial court correctly held that the issue of the arbitration clause contained in the contract could not be raised by way of a preliminary objection. Further that the arbitration clause does not automatically oust the jurisdiction of the court.
10. I have considered the application, the response thereto and the submissions by learned counsels for the parties. The issue for determination is whether the applicant herein has offered sufficient reasons to warrant this court to exercise its discretion to stay the proceedings before the trial court pending hearing and determination of the appeal.
11. Order 42 Rule 6(1) of the Civil Procedure Rules provides for stay of proceedings 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. It is apparent from this provision that the court to which an appeal is preferred has a wide discretion to grant an order of stay of proceedings since the rule provides that “... the court to which such an appeal is preferred shall be at liberty ... to consider such application and to make such order thereon as may to it seem just ...” Considering this provision, Ouko, J. (as he then was) in the case of Stepup Holdings (K) Limited V Mt. Kenya University [2012] KEHC 3957 (KLR) held that:
“I must emphasise again that the usual strictures that sufficient cause be shown and that no order of stay should be made unless there would be substantial loss, that the application has been made without unreasonable delay and that the applicant must provide security, are, on a plain reading of rule 6(1), applicable only to applications for stay of execution.”
13. The learned Judge emphasized on the manner of exercise of judicial discretion by stating that:
“Judicial discretion must be exercised in order to meet the interest of justice; exercised rationally, on sound principles of law and not arbitrarily or capriciously.”
14. Further emphasis on the difference in the requirements for stay of proceedings from those of stay of execution is provided in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated thus:
“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. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“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, 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” (emphasis added)
See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“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 proceeding beyond all 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 the case.”
15. The applicant raised a preliminary issue on the jurisdiction of the trial court to proceed with the case filed by the respondent before it in view of an arbitration clause in their contract. The lower court considered the preliminary objection and held that:
“... the applicant ought to have formally applied for a stay of proceedings at the time of entering appearance into the suit, and the same cannot be done suo moto by this court. Further, at this stage, the court cannot undertake to ascertain if the dispute between the parties exists and whether such dispute is within the scope of the arbitration agreement. That would be premature and defeat the whole purpose of a preliminary objection.”
16. The lower court thus found that the procedure adopted by the applicant in filing a preliminary objection rather than an application was inappropriate for the orders sought. The applicant is challenging that decision of the lower court, effectively seeking not to participate in the court’s proceedings before the matter is referred to arbitration.
17. Once again, Ouko, J. (as he then was) dealing with a similar scenario in the cited case of Stepup Holdings (K) Ltd (supra) held as follows:
“The effect of this court dismissing this application would be to allow the matter to proceed before the court and the applicant to participate when they have challenged that participation. It is indeed a question of jurisdiction which in my view must be determined by the outcome of the appeal. . .
I share the sentiments of the Justices of Appeal in Shashic Patel V. Damayantina Vin Shah, Civil Appeal No.236 of 2006 when they granted a stay of proceedings saying:
“It might be difficult if not impossible to get the matter to arbitration once it is heard by the superior court as there will remain nothing to go to arbitration by then. Common sense commands that as the question of whether to refer the matter to arbitration or not is still to be subject of an appeal or intended appeal in this court, the hearing in the superior court must be stayed to abide the outcome of this court’s decision on the intended appeal.”
18. There is no doubt that the issue raised by the applicant before the trial court is one of the jurisdiction of the court to proceed with the suit in view of an arbitration clause in the contract between the parties. It is only fair and just that the issue of jurisdiction be conclusively disposed of first.
19. There is no doubt that the appeal herein will inevitably delay the determination of the case before the trial court. However, considering that the issue of jurisdiction is a foundational one to the proper conduct of proceedings before any court, I find that a delay in seeking clarity on that issue from this court would not gravely prejudice the respondent.
20. Consequently, this court finds that the applicant’s notice of motion has merit and the same is allowed. The interim order issued by this court for stay of proceedings before the Kwale Magistrate’s Court Civil Case No. E197 of 2025 are hereby confirmed pending the hearing and determination of the appeal herein.
21. Costs shall be in the cause of the appeal.
22. Orders accordingly.
23. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 30th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Applicant/Appellant.
...for the Respondent.
Ummu: Court Assistant.