Introduction
1. Before court is a notice of motion dated 10th, November 2025 filed by the firm of Kasamani & Associates Advocates seeking stay of further proceedings in this matter pending the hearing and determination of the defendants’ intended appeal against this court’s ruling dated 15th October 2025.
2. The application is anchored on the affidavit sworn by the 1st defendant on 1oth November, 2025. He deponed that this court dismissed his advocates’ application to come on record, yet his advocate had regularized his status and obtained necessary approvals before hearing of the application. That the ruling has prejudiced them as it has denied them the right to representation by an advocate of their choice, protected under Article 50 (1) of the Constitution.
3. That they have since lodged a notice of appeal against the said ruling and have sought typed proceedings to enable them file appeal. That unless the proceedings herein are stayed, the matter may proceed to hearing and render the intended appeal nugatory occasioning them irreparable injustice.
4. Further that their advocate, Vincent Kasamani, is now a duly registered practitioner operating under the firm name of Kasamani & Associates, with a valid practicing certificate for the year 2025 and is now fully compliant with the Advocates Act.
5. They maintained that the application is made in good faith and not intended to delay this matter. That no prejudice shall be suffered by the respondent if proceedings herein are stayed. That he has a good appeal and the orders sought should be granted in the interest of justice.
6. The application was opposed. The plaintiff filed grounds of opposition dated 10th February 2026. She stated that the application offends provisions of Order 9 Rule 9 of the Civil Procedure Rules and is contemptuous of the ruling of this court disallowing the firm of Kasamani & Associates to act for the defendants.
7. That as judgment has been entered in this matter, the application herein is overtaken because the matter is now closed. That orders cannot be issued in vain and that since there are no pending proceedings, there is possibility of a resultant confusion on the import of such orders. That there is nothing to be rendered nugatory.
Analysis and determination.
8. The court has carefully considered the application, as well as the grounds of opposition. The only issue that arises for this court’s determination is whether the applicant herein deserves the orders sought.
9. Order 42 Rule 6 of the Civil Procedure Rules provides for the jurisdiction of the court to grant orders of stay of proceedings pending appeal as follows;
“Stay in case of appeal [Order 42, rule 6]
(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.”
10. The threshold for grant of stay of proceedings is higher than that for grant of stay of execution. Once cases are filed in court, they ought to be determined expeditiously as envisaged in the provisions of Article 159 (2) (b) of the Constitution of Kenya as read with section 3 of the Environment and Land Court Act and sections 1A and 1B of the Civil Procedure Act.
11. Article 48 of the Constitution of Kenya which guarantees access to justice requires expeditious determination of suits. Therefore, for an applicant to obtain orders to stay the hearing and determination of a matter, they must demonstrate that proceeding with the matter will result in an obvious injustice.
12. In the case of Kenya Wildlife Service v James Mutembei (2019) e KLR, where it held as follows;
“Stay of proceedings 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 the right of access to justice, right to be heard without delay, and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.”
13. The instant suit was heard to conclusion and judgment delivered on 30th April 2024. What remains is execution of the decree. This court having heard and determined this matter to conclusion, has no pending proceedings capable of being stayed. Courts do not issue orders in futility, and therefore, the orders sought cannot be issued.
14. In any event, the application herein must fail as the same was filed by a stranger in this matter as the firm of Kasamani & Associates, which filed the instant application is not on record for the applicants. The upshot is that, there is no merit in the application dated 10th November 2025, which I hereby dismiss with costs to the respondent.
15. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 28TH DAY OF MAY, 2026
In the presence of;
Mr. Mukoya for the applicant
No appearance for the respondent.
Court Assistant: Delphine