1. The court below delivered a ruling on 2nd July 2025 in Mombasa CMCC NO.40 of 2019, dismissing the application filed by the appellant on 20th February 2024. The application sought to strike out a suit as scandalous, frivolous, vexatious, and an abuse of the court process on the ground that the criminal case was withdrawn by the Director of Public Prosecution under Section 87(a) of the Criminal Procedure Code and did not amount to an acquittal. In the appellant's view, only an acquittal would entitle the respondent to file a suit.
2. Being aggrieved, the appellant filed a Memorandum of Appeal dated 29th July 2025, seeking to have the decision of the Hon Gatheru set aside and to have CMCC No.40 of 2019 struck out with costs. The appellant also filed an application in the subordinate court seeking a stay of proceedings. The application was dismissed on 7th January 2026. The court fixed the matter for a pretrial conference on 9th February 2026.
3. Undeterred, the appellant filed the Notice of Motion dated 22nd January 2026 seeking to stay proceedings of the court below pending hearing and determination of the appeal. The application is opposed by Mr Bernard Odoyo Ojijo, who filed a replying affidavit sworn on 2nd February 2026. Briefly, he saw in the application a ploy to delay, obstruct and frustrate the fair and timely determination of the suit.
4. The application was canvassed by way of written submissions. Both parties filed written submissions, which I have considered. The issue that arises from the said submissions is whether the court should stay proceedings in the court below pending the hearing of the appeal.
5. Although the court below has already considered the application for stay pending appeal. I am not bound by its determination. In the case of Reuben and 9 others v Nderitu & another [1989] KLR 459, the Court of Appeal held that:
“The High Court is entitled to consider the matter afresh and is not bound by the discretion exercised by the subordinate court.”
6. The foregoing notwithstanding, I must give due regard to the decision of the court below, and only disturb its decision where it appears to me that the discretion was improperly exercised. In the case of Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted, or because it failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong conclusion.”
7. Should the proceedings be stayed in the court below? Courts do stay proceedings in appropriate cases. In the case of Global Touts and Travel Limited, Nairobi HC Winding Up Cause No. 43 of 2000 Ringera J. held that:
“As I understand the law, whether or not to grant a stay of proceedings 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 so, on what terms.”
8. It must be noted that a stay of proceedings is a grave judicial remedy that interferes with the trial process. This is especially so in a matter like the one in the court below. The suit was filed in 2019. The matter has not been concluded to date. As a matter of fact, the striking out application was filed in 2024. In the circumstances of this case, would a stay of proceedings be in the interest of justice? I am afraid not. It will tie up the Court below in knots, which will take another few years to untangle.
9. I am guided by what Joel Ngugi J, as he then was, held in Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR) to wit that:
“As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal, only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1, p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”
10. The appellant hasn’t shown that there are exceptional circumstances in this case that warrant staying proceedings in the Court below.
11. In any case, I see no substantial loss to the appellant if the hearing proceeds. If the hearing continues and is concluded, the determination of the Chief Magistrate’s Court, if adverse to the appellant, can still be appealed. In such an event, the appellant will be able to attack the decision in a single appeal, rather than in piecemeal appeals that keep the court busy and have the collateral effect of delaying justice for all other litigants.
12. In my view, the Notice of Motion dated 22nd January 2026 has no merit. The same is dismissed with costs to Bernard Odoyo Ojijo.
13. It is so ordered.
Dated and signed in Nairobi, this 7th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. Being aggrieved, the appellant filed a Memorandum of Appeal dated 29th July 2025, seeking to have the decision of the Hon Gatheru set aside and to have CMCC No.40 of 2019 struck out with costs. The appellant also filed an application in the subordinate court seeking a stay of proceedings. The application was dismissed on 7th January 2026. The court fixed the matter for a pretrial conference on 9th February 2026.
3. Undeterred, the appellant filed the Notice of Motion dated 22nd January 2026 seeking to stay proceedings of the court below pending hearing and determination of the appeal. The application is opposed by Mr Bernard Odoyo Ojijo, who filed a replying affidavit sworn on 2nd February 2026. Briefly, he saw in the application a ploy to delay, obstruct and frustrate the fair and timely determination of the suit.
4. The application was canvassed by way of written submissions. Both parties filed written submissions, which I have considered. The issue that arises from the said submissions is whether the court should stay proceedings in the court below pending the hearing of the appeal.
5. Although the court below has already considered the application for stay pending appeal. I am not bound by its determination. In the case of Reuben and 9 others v Nderitu & another [1989] KLR 459, the Court of Appeal held that:
“The High Court is entitled to consider the matter afresh and is not bound by the discretion exercised by the subordinate court.”
6. The foregoing notwithstanding, I must give due regard to the decision of the court below, and only disturb its decision where it appears to me that the discretion was improperly exercised. In the case of Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted, or because it failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong conclusion.”
7. Should the proceedings be stayed in the court below? Courts do stay proceedings in appropriate cases. In the case of Global Touts and Travel Limited, Nairobi HC Winding Up Cause No. 43 of 2000 Ringera J. held that:
“As I understand the law, whether or not to grant a stay of proceedings 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 so, on what terms.”
8. It must be noted that a stay of proceedings is a grave judicial remedy that interferes with the trial process. This is especially so in a matter like the one in the court below. The suit was filed in 2019. The matter has not been concluded to date. As a matter of fact, the striking out application was filed in 2024. In the circumstances of this case, would a stay of proceedings be in the interest of justice? I am afraid not. It will tie up the Court below in knots, which will take another few years to untangle.
9. I am guided by what Joel Ngugi J, as he then was, held in Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR) to wit that:
“As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal, only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1, p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”
10. The appellant hasn’t shown that there are exceptional circumstances in this case that warrant staying proceedings in the Court below.
11. In any case, I see no substantial loss to the appellant if the hearing proceeds. If the hearing continues and is concluded, the determination of the Chief Magistrate’s Court, if adverse to the appellant, can still be appealed. In such an event, the appellant will be able to attack the decision in a single appeal, rather than in piecemeal appeals that keep the court busy and have the collateral effect of delaying justice for all other litigants.
12. In my view, the Notice of Motion dated 22nd January 2026 has no merit. The same is dismissed with costs to Bernard Odoyo Ojijo.
13. It is so ordered.
Dated and signed in Nairobi, this 7th day of May 2026. Delivered virtually through Microsoft TEAMS.