1. The substance of this ruling is the plaintiffs’ notice of motion dated 20 February 2026, brought pursuant to the provisions of Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules, Section 1A, 1B & 3A of the Civil Procedure Act, and all other enabling provisions of the law. They seek the following reliefs: -
a. THAT the honourable court do stay proceedings in this matter pending the hearing and determination of Civil Appeal No. E402 of 2025, filed in the Court of Appeal, Nairobi, against the ruling of this court dated 29 April 2024.
b. THAT the costs of this application be provided for.
2. The application was premised on the grounds set out in the face thereof and on the supporting affidavit of the counsel for the plaintiffs, Mr. Alphonce Muema Mbindyo, sworn on the instant date. Counsel has made several depositions. In summary, the plaintiff initially sought to join additional plaintiffs, amend the plaint, and file further documents, but the court dismissed this request on 29th April 2024. Dissatisfied, the plaintiffs subsequently obtained leave to appeal out of time. The appeal documents were filed and served in May 2025, but the appeal has not yet been heard.
3. The motion is strenuously opposed by the replying affidavit of counsel Mr. Enoch Kamau Muriuki for the 1st defendant, sworn on 17 March 2026. He made various statements. In brief, the court dismissed the plaintiffs’ application to join additional plaintiffs due to an unexplained eight-year delay, despite amendments. The application is simply a tactic to further delay the case, noting that the plaintiffs’ advocate previously sought an adjournment to cease acting but instead filed the current stay application. The trial proceeding does not negate the appeal, as any judgment can later be stayed, and the motion has not met the legal threshold.
4. This court directed the parties to canvass the motion through comprehensive written submissions. In compliance with the court’s directions, the plaintiffs’ law firm on record, Ms. A.M. Mbindyo & Co. Advocates, filed written submissions dated 10 April 2026, whereas the 1st defendant’s law firm on record, Ms. Kiruki & Kayika Advocates, filed written submissions dated 27 April 2026. Accordingly, having carefully considered the motion, grounds, affidavits, annexures, rival submissions, the legal framework, and prevailing jurisprudence, including those relied upon by counsel, the single issue for determination is whether the legal threshold to warrant the stay of these proceedings has been met.
5. The legal framework for a stay of proceedings is found in Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, and they provide 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.
(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.
6. When entertaining an application for a stay of proceedings, this court usually exercises judicious discretion, which is anchored in law and reason. In the Supreme Court decision of Khan v International Commercial Company (K) Ltd [2023] KESC 84 (KLR), the court stated as follows on the guiding principles: -
“The grant of an order for a stay of proceedings was to be entertained only in deserving cases as it impacted the right to an expeditious trial. Such orders were discretionary in nature, exercisable by the court upon consideration of the facts and circumstances of each case.”
7. In the persuasive decision of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, which the 1st defendant’s counsel has relied upon, Ringera J (as he then was) had this to say on the principles for the stay of proceedings:
“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).”
8. As this court is the court from whose decision an appeal has been preferred, it is the considered opinion of this court that the Court of Appeal is better positioned to assess whether the appeal is arguable or meritorious. Having raised these grounds, they ought to have filed the present application before the Court of Appeal and not this court. A stay of proceedings pending an interlocutory appeal is a rare and exceptional remedy.
9. In agreement with the 1st defendant, this matter has been pending in court for 16 years, with no end in sight, and, for one reason or another, the plaintiffs have dragged their feet. This court will not dwell much on the activities before 16 November 2018, as the ruling of this court rendered on that day found that the delay in the plaintiffs' prosecution of the matter was attributable to administrative challenges in the judiciary.
10. Subsequent to that day, the plaintiffs have sought several adjournments. Moreover, as at 17 October 2019, they had not complied with Order 11 of the Civil Procedure Rules, had filed several applications, and had delayed in filing a trial bundle. Of significance, when this matter was finally fixed for hearing on 24 November 2025, his counsel sought an adjournment on the grounds of a falling-out with his client and sought leave to file an application to cease acting. The court adjourned the matter to allow the plaintiff to be served with an application within 30 days. On the next scheduled date, 26 February 2025, the plaintiffs’ counsel informed the court that he now had instructions to file the instant motion.
11. Having considered the conduct of the plaintiffs in these proceedings, who have derailed the hearing of this matter in contravention of the overarching principles of this court on the expeditious disposal of this matter, which has been pending in court for 15 years without an end in sight, and noting that the instant application was an afterthought, as it was filed long after leave to appeal was granted by the Court of Appeal, this court finds that the motion is not justified. Given the importance of speedy case resolution and the fact that this matter has been delayed at the plaintiffs' instance, a further delay by staying this matter would mean the defendants would be saddled with a case indefinitely. Further, the plaintiffs have not demonstrated exceptional circumstances warranting a stay of these proceedings.
12. Ultimately, this court finds that the notice of motion dated 20 February 2026 is not merited. It is dismissed with costs in the cause. A hearing date for the main suit shall be issued. No further applications shall be filed in this matter except with leave of the Court.
It is so ordered.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Mr. Mbindyo for plaintiff/applicant.
No appearance for other parties.
a. THAT the honourable court do stay proceedings in this matter pending the hearing and determination of Civil Appeal No. E402 of 2025, filed in the Court of Appeal, Nairobi, against the ruling of this court dated 29 April 2024.
b. THAT the costs of this application be provided for.
2. The application was premised on the grounds set out in the face thereof and on the supporting affidavit of the counsel for the plaintiffs, Mr. Alphonce Muema Mbindyo, sworn on the instant date. Counsel has made several depositions. In summary, the plaintiff initially sought to join additional plaintiffs, amend the plaint, and file further documents, but the court dismissed this request on 29th April 2024. Dissatisfied, the plaintiffs subsequently obtained leave to appeal out of time. The appeal documents were filed and served in May 2025, but the appeal has not yet been heard.
3. The motion is strenuously opposed by the replying affidavit of counsel Mr. Enoch Kamau Muriuki for the 1st defendant, sworn on 17 March 2026. He made various statements. In brief, the court dismissed the plaintiffs’ application to join additional plaintiffs due to an unexplained eight-year delay, despite amendments. The application is simply a tactic to further delay the case, noting that the plaintiffs’ advocate previously sought an adjournment to cease acting but instead filed the current stay application. The trial proceeding does not negate the appeal, as any judgment can later be stayed, and the motion has not met the legal threshold.
4. This court directed the parties to canvass the motion through comprehensive written submissions. In compliance with the court’s directions, the plaintiffs’ law firm on record, Ms. A.M. Mbindyo & Co. Advocates, filed written submissions dated 10 April 2026, whereas the 1st defendant’s law firm on record, Ms. Kiruki & Kayika Advocates, filed written submissions dated 27 April 2026. Accordingly, having carefully considered the motion, grounds, affidavits, annexures, rival submissions, the legal framework, and prevailing jurisprudence, including those relied upon by counsel, the single issue for determination is whether the legal threshold to warrant the stay of these proceedings has been met.
5. The legal framework for a stay of proceedings is found in Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, and they provide 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.
(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.
6. When entertaining an application for a stay of proceedings, this court usually exercises judicious discretion, which is anchored in law and reason. In the Supreme Court decision of Khan v International Commercial Company (K) Ltd [2023] KESC 84 (KLR), the court stated as follows on the guiding principles: -
“The grant of an order for a stay of proceedings was to be entertained only in deserving cases as it impacted the right to an expeditious trial. Such orders were discretionary in nature, exercisable by the court upon consideration of the facts and circumstances of each case.”
7. In the persuasive decision of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, which the 1st defendant’s counsel has relied upon, Ringera J (as he then was) had this to say on the principles for the stay of proceedings:
“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).”
8. As this court is the court from whose decision an appeal has been preferred, it is the considered opinion of this court that the Court of Appeal is better positioned to assess whether the appeal is arguable or meritorious. Having raised these grounds, they ought to have filed the present application before the Court of Appeal and not this court. A stay of proceedings pending an interlocutory appeal is a rare and exceptional remedy.
9. In agreement with the 1st defendant, this matter has been pending in court for 16 years, with no end in sight, and, for one reason or another, the plaintiffs have dragged their feet. This court will not dwell much on the activities before 16 November 2018, as the ruling of this court rendered on that day found that the delay in the plaintiffs' prosecution of the matter was attributable to administrative challenges in the judiciary.
10. Subsequent to that day, the plaintiffs have sought several adjournments. Moreover, as at 17 October 2019, they had not complied with Order 11 of the Civil Procedure Rules, had filed several applications, and had delayed in filing a trial bundle. Of significance, when this matter was finally fixed for hearing on 24 November 2025, his counsel sought an adjournment on the grounds of a falling-out with his client and sought leave to file an application to cease acting. The court adjourned the matter to allow the plaintiff to be served with an application within 30 days. On the next scheduled date, 26 February 2025, the plaintiffs’ counsel informed the court that he now had instructions to file the instant motion.
11. Having considered the conduct of the plaintiffs in these proceedings, who have derailed the hearing of this matter in contravention of the overarching principles of this court on the expeditious disposal of this matter, which has been pending in court for 15 years without an end in sight, and noting that the instant application was an afterthought, as it was filed long after leave to appeal was granted by the Court of Appeal, this court finds that the motion is not justified. Given the importance of speedy case resolution and the fact that this matter has been delayed at the plaintiffs' instance, a further delay by staying this matter would mean the defendants would be saddled with a case indefinitely. Further, the plaintiffs have not demonstrated exceptional circumstances warranting a stay of these proceedings.
12. Ultimately, this court finds that the notice of motion dated 20 February 2026 is not merited. It is dismissed with costs in the cause. A hearing date for the main suit shall be issued. No further applications shall be filed in this matter except with leave of the Court.
It is so ordered.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Mr. Mbindyo for plaintiff/applicant.
No appearance for other parties.