Introduction
1. By a notice of motion dated 9th June 2025, expressed to be brought under Order 42 rule 6 and Order 43 rule 3 of the Civil Procedure Rules and sections 1A, 1B, 3A and 75 of the Civil Procedure Act, the appellant moves the court principally for an order that there be a stay of proceedings in Mombasa Chief Magistrate’s Court Civil Case No. E310 of 2023 pending the hearing and determination, first, of the application itself and, thereafter, of the appeal which the appellant has preferred against the ruling of the learned trial magistrate delivered on 22nd April 2025. The appellant also prays for the costs of the application.
2. The application is supported by the grounds set out on its face and by the affidavit of the appellant, Muhidin Salum Farhani, sworn on 9th June 2025. The appellant’s case, shortly stated, is this: that in the course of the hearing of the suit before the trial court, the learned magistrate delivered a ruling on 22nd April 2025 overruling the appellant’s objection to the production in evidence, by the 1st respondent, of documents of which, according to the appellant, the 1st respondent is neither the maker nor the addressee; that, aggrieved by that ruling, the appellant filed a memorandum of appeal dated 16th May 2025 against the whole of the decision; that the suit stood fixed for further hearing of the plaintiffs’ case on 12th June 2025; and that unless the proceedings before the trial court are stayed, the appeal will be rendered nugatory and the appellant will suffer substantial loss and irreparable harm. The appellant further contends that a refusal of the stay would occasion a duplicity of suits and a waste of judicial time, that his appeal is meritorious, and that the application was brought without delay.
Background
3. The genesis of the matter is a plaint dated 17th March 2023 by which the 1st and 2nd respondents sued the appellant, the Kenya Ports Authority, the DCIO Kilindini Port Police and the Honourable Attorney General. The 1st and 2nd respondents claim to be the importers and owners of thirteen motor vehicles contained in five containers, namely, ECMU9604122, TGHU8230326, CMAU5461150, TRLU6221578 and TRLU5288896, shipped from the United Kingdom in or about the year 2010 and destined for the United Republic of Tanzania through the port of Mombasa. The consignment was intercepted at Kilindini port in July 2010 on suspicion that it comprised stolen goods and it has remained at the port ever since. In the suit, the 1st and 2nd respondents pray, in the main, for a declaration that the consignment belongs to them and for its unconditional release; for a waiver of storage and other charges; and for damages for trespass to goods and attempted conversion.
4. The appellant, who was sued as the 1st defendant, also lays claim to the consignment; the dispute in the court below is, in substance, a contest over its ownership. The hearing of the suit commenced before the learned magistrate and it was during the presentation of the plaintiffs’ case that the appellant took objection to the production of certain documents by the 1st respondent. By the impugned ruling the learned magistrate overruled the objection and allowed the documents in evidence. According to the 3rd respondent, the learned magistrate, by the same ruling, also expunged from the record the 3rd respondent’s list and bundle of documents dated 17th April 2025.
5. The memorandum of appeal raises six grounds which are, in truth, variations of a single complaint: that the learned magistrate erred in overruling the appellant’s objection and in allowing the 1st respondent to produce and rely on documents of which he is said to be neither the maker nor the addressee; on a replying affidavit said to have been filed in a different matter and presented as evidence in chief; and on evidence said to have been improperly filed and which the 1st respondent is said to have had no capacity to produce. The appeal seeks orders setting aside the ruling and directing that the suit be heard and determined by a different magistrate.
The responses
6. The only response to the application on the record is the replying affidavit of Robert Muge, an advocate in the employment of the 3rd respondent, sworn on 21st November 2025. Though styled a replying affidavit, it supports the application in its entirety. The deponent avers that among the documents expunged by the trial court is a tabulation of the port charges due to the 3rd respondent in respect of the suit consignment which, as at 6th April 2023, stood at USD 1,707,300; that the plaint seeks, among other reliefs, the unconditional release of the consignment and a waiver of those charges; that the charges are therefore among the issues for determination in the suit; and that, so computed, the subject matter of the suit is far in excess of the pecuniary jurisdiction of the trial court which, according to the deponent, is capped at ten million shillings under section 7(1) of the Magistrates’ Courts Act where the court is presided over by a principal magistrate. On this premise the 3rd respondent urges the court not only to allow the application with costs but also to issue an order admitting the 3rd respondent’s bundle of documents in evidence.
7. There is no response on the record from the 1st, 2nd, 4th and 5th respondents.
The issue for determination
8. As framed, the application invites the court to exercise its discretion under Order 42 rule 6 of the Civil Procedure Rules and stay the proceedings before the trial court. Before that discretion can properly be engaged, however, there is a logically prior question which the court is entitled, indeed bound, to consider even of its own motion: whether the appeal to which the application is tethered is itself competent. The decision sought to be appealed is an interlocutory ruling on the admissibility of evidence made in the course of a part-heard trial, and the question is whether such a ruling is amenable to an appeal at this stage at all. The competency of an appeal goes to the jurisdiction of the court, and it is trite, on the authority of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1, that a court must satisfy itself that it is properly seized of a matter before taking any further step in it; jurisdiction is everything and without it a court has no power to make one more step.
Analysis and determination
9. The principles upon which a stay of proceedings pending appeal may be granted are well settled. The power is discretionary; the discretion must be exercised judicially and not capriciously; and, ordinarily, the court will consider whether the appeal, or intended appeal, is arguable and not frivolous, whether the refusal of a stay would render the appeal nugatory, and where, on a balance, the interests of justice lie. It must also be borne in mind that a stay of proceedings is a grave intrusion upon the right of a litigant to prosecute his suit to its conclusion, and it is for that reason never granted as a matter of course. See, generally, In re Global Tours & Travels Limited, Nairobi (Milimani) High Court Winding-Up Cause No. 43 of 2000 [2000] eKLR.
10. The starting point must be the nature of the decision sought to be appealed. The impugned ruling resolved an objection, taken in the middle of the trial, to the production of documents by a witness. It determined no right of any party with finality. The weight, if any, to be attached to the documents remains entirely at large; the trial court, when it comes to evaluate the whole of the evidence at the close of the trial, remains free to attach little or no weight to them; and, should the eventual judgment go against the appellant, nothing whatsoever prevents him from renewing his complaint about their admission, in full and with the benefit of a complete record, on an appeal from that judgment.
11. Secondly, the right of appeal is a creature of statute; no appeal lies from any decision of a subordinate court except as conferred by law. Appeals from orders of subordinate courts are governed by section 75(1) of the Civil Procedure Act as read with Order 43 rule 1(1) of the Civil Procedure Rules, which enumerate the orders from which an appeal lies as of right. A ruling overruling an objection to the production of documents in the course of a hearing is not among the orders so enumerated. From any other order an appeal lies only with the leave of the court which, by dint of Order 43 rule 3, must in the first instance be sought from the court that made the order, and within fourteen days of the making of the order. Nothing on the record before me shows that leave to appeal was ever sought from, let alone granted by, the trial court or, for that matter, this court; the citation of Order 43 rule 3 in the heading of the notice of motion is no substitute for actually obtaining leave. The appeal before this Honourable Court is thus, incompetent.
12. There is a third and, to my mind, more fundamental consideration, and it is this: the scheme of our law is that complaints about the admission or rejection of evidence in the course of a trial are to be evaluated at the end of the trial, and against the final decision, rather than before it. Section 167(1) of the Evidence Act (Cap 80) provides as follows:
“The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.”
13. The provision is instructive. The legislature contemplates that a court confronted with a complaint of wrongful admission or rejection of evidence will ask itself whether, independently of the evidence complained of, the decision reached is sustainable, or whether the rejected evidence, had it been received, ought to have varied that decision. That inquiry is only possible where there is a decision to speak of. An interlocutory appeal of the present kind invites the appellate court to conduct the inquiry in a vacuum, before the evidence is complete and before there exists any decision against which the materiality of the disputed evidence can be measured. That is to invert the statutory scheme. The place at which the admission or rejection of evidence in the course of a trial falls to be interrogated is at the conclusion of the trial, whether before the trial court itself in its evaluation of the evidence, or on an appeal from its final decision; it is not by way of an interlocutory appeal mounted mid-stream.
14. It follows that the appellant stands to lose nothing that cannot be fully restored to him in due course. If, at the end of the trial, judgment is entered against him and he maintains that the disputed documents were wrongly admitted, that complaint will be available to him, whole and undiminished, as a ground of appeal against the judgment; and the appellate court, on such an appeal, has ample powers under section 78 of the Civil Procedure Act to re-appraise the evidence, to disregard the offending material, to reverse the decision, or to remit the suit as the justice of the case may require. The contention that the appeal will be rendered nugatory unless the trial is halted therefore fails in limine: the complaint at the heart of the appeal is one which, by its very nature, matures only upon judgment.
15. There is, in addition, a broader mischief to guard against. If every ruling on an objection to evidence could found an immediate appeal, accompanied by an application for a stay of the trial, no trial would ever proceed to its conclusion; suits would advance witness by witness and objection by objection, shuttling up and down the judicial hierarchy in the meantime. Nothing could be further removed from the overriding objective in sections 1A and 1B of the Civil Procedure Act, the duty which section 3A of the Act casts upon the parties to facilitate that objective, and the command of Article 159(2)(b) of the Constitution that justice shall not be delayed. The Court of Appeal made the point, in the analogous context of leave to appeal against interlocutory orders, in Equity Bank Limited v West Link Mbo Limited [2013] eKLR: leave is to be granted sparingly, and interlocutory decisions which do not finally dispose of the rights of the parties are, as a general rule, best assessed at the conclusion of the trial when their bearing, if any, on the final outcome can be seen.
16. The present case is, if anything, an advertisement of that mischief. The consignment at the heart of the dispute landed at the port of Mombasa in the year 2010, some sixteen years ago. The suit itself was not filed until March 2023, and the plaintiffs plead that the vehicles are in such a state of deterioration that, unless released, they risk becoming a total loss. The appeal does not go to the merits of the contest over the ownership of the consignment at all; it targets a ruling on the production of documents. To halt the trial of a dispute of this antiquity in order to litigate, at an interlocutory stage, a complaint that is properly reserved for the end of the trial would be a singularly unhappy exercise of this court’s discretion.
17. I turn to the 3rd respondent’s position, which is something of a curiosity in this application: a respondent supporting the appellant’s motion and, for good measure, seeking substantive relief of its own, namely, an order admitting in evidence its expunged bundle of documents. That prayer cannot issue in these proceedings. The 3rd respondent has preferred no appeal or cross-appeal against the expungement of its documents; and a party cannot obtain, on the back of another party’s motion for a stay of proceedings, appellate relief reversing part of the very ruling the appeal against which I have found to be incompetent. Like the appellant’s, the 3rd respondent’s complaint about the fate of its documents is one to be pursued before the trial court in the first instance and, if need be, on an appeal from the final decision.
18. As for the 3rd respondent’s contention that the subject matter of the suit exceeds the pecuniary jurisdiction of the trial court, the point is, no doubt, fundamental in nature, for jurisdiction is the lifeblood of any adjudication. But it is not properly before me. It was not a ground of the appeal; it was not the subject of the impugned ruling; and it surfaces for the first time in a replying affidavit to an application for a stay of proceedings. An objection to the pecuniary jurisdiction of the trial court is one to be taken before that court, which is perfectly competent to inquire into and pronounce upon a challenge to its own jurisdiction, and whose decision on the point would then be amenable to challenge in the ordinary way. I therefore say nothing about the merits of the objection, and nothing in this ruling should be understood to foreclose it.
19. The upshot is this: the appeal upon which the application is anchored is incompetent, and an incompetent appeal can anchor nothing, least of all a stay of proceedings. But even if the appeal were competent, the application would still fail on the settled principles. The appeal raises a complaint that will remain fully available to the appellant at the conclusion of the trial; the refusal of a stay will accordingly render nothing nugatory; and the balance of justice tilts decisively in favour of the expeditious conclusion of a trial concerning a consignment that has lain at the port for the better part of two decades.
Disposition
20. In the result, I make the following orders:
(a) the notice of motion dated 9th June 2025 is dismissed;
(b) the appeal herein, being incompetent, is struck out;
(c) the hearing of Mombasa Chief Magistrate’s Court Civil Case No. E310 of 2023 shall proceed before the trial court and shall be concluded on a priority basis; and
(d) the costs of the application and of the appeal shall abide the outcome of the suit before the trial court.
It is so ordered.
1. By a notice of motion dated 9th June 2025, expressed to be brought under Order 42 rule 6 and Order 43 rule 3 of the Civil Procedure Rules and sections 1A, 1B, 3A and 75 of the Civil Procedure Act, the appellant moves the court principally for an order that there be a stay of proceedings in Mombasa Chief Magistrate’s Court Civil Case No. E310 of 2023 pending the hearing and determination, first, of the application itself and, thereafter, of the appeal which the appellant has preferred against the ruling of the learned trial magistrate delivered on 22nd April 2025. The appellant also prays for the costs of the application.
2. The application is supported by the grounds set out on its face and by the affidavit of the appellant, Muhidin Salum Farhani, sworn on 9th June 2025. The appellant’s case, shortly stated, is this: that in the course of the hearing of the suit before the trial court, the learned magistrate delivered a ruling on 22nd April 2025 overruling the appellant’s objection to the production in evidence, by the 1st respondent, of documents of which, according to the appellant, the 1st respondent is neither the maker nor the addressee; that, aggrieved by that ruling, the appellant filed a memorandum of appeal dated 16th May 2025 against the whole of the decision; that the suit stood fixed for further hearing of the plaintiffs’ case on 12th June 2025; and that unless the proceedings before the trial court are stayed, the appeal will be rendered nugatory and the appellant will suffer substantial loss and irreparable harm. The appellant further contends that a refusal of the stay would occasion a duplicity of suits and a waste of judicial time, that his appeal is meritorious, and that the application was brought without delay.
Background
3. The genesis of the matter is a plaint dated 17th March 2023 by which the 1st and 2nd respondents sued the appellant, the Kenya Ports Authority, the DCIO Kilindini Port Police and the Honourable Attorney General. The 1st and 2nd respondents claim to be the importers and owners of thirteen motor vehicles contained in five containers, namely, ECMU9604122, TGHU8230326, CMAU5461150, TRLU6221578 and TRLU5288896, shipped from the United Kingdom in or about the year 2010 and destined for the United Republic of Tanzania through the port of Mombasa. The consignment was intercepted at Kilindini port in July 2010 on suspicion that it comprised stolen goods and it has remained at the port ever since. In the suit, the 1st and 2nd respondents pray, in the main, for a declaration that the consignment belongs to them and for its unconditional release; for a waiver of storage and other charges; and for damages for trespass to goods and attempted conversion.
4. The appellant, who was sued as the 1st defendant, also lays claim to the consignment; the dispute in the court below is, in substance, a contest over its ownership. The hearing of the suit commenced before the learned magistrate and it was during the presentation of the plaintiffs’ case that the appellant took objection to the production of certain documents by the 1st respondent. By the impugned ruling the learned magistrate overruled the objection and allowed the documents in evidence. According to the 3rd respondent, the learned magistrate, by the same ruling, also expunged from the record the 3rd respondent’s list and bundle of documents dated 17th April 2025.
5. The memorandum of appeal raises six grounds which are, in truth, variations of a single complaint: that the learned magistrate erred in overruling the appellant’s objection and in allowing the 1st respondent to produce and rely on documents of which he is said to be neither the maker nor the addressee; on a replying affidavit said to have been filed in a different matter and presented as evidence in chief; and on evidence said to have been improperly filed and which the 1st respondent is said to have had no capacity to produce. The appeal seeks orders setting aside the ruling and directing that the suit be heard and determined by a different magistrate.
The responses
6. The only response to the application on the record is the replying affidavit of Robert Muge, an advocate in the employment of the 3rd respondent, sworn on 21st November 2025. Though styled a replying affidavit, it supports the application in its entirety. The deponent avers that among the documents expunged by the trial court is a tabulation of the port charges due to the 3rd respondent in respect of the suit consignment which, as at 6th April 2023, stood at USD 1,707,300; that the plaint seeks, among other reliefs, the unconditional release of the consignment and a waiver of those charges; that the charges are therefore among the issues for determination in the suit; and that, so computed, the subject matter of the suit is far in excess of the pecuniary jurisdiction of the trial court which, according to the deponent, is capped at ten million shillings under section 7(1) of the Magistrates’ Courts Act where the court is presided over by a principal magistrate. On this premise the 3rd respondent urges the court not only to allow the application with costs but also to issue an order admitting the 3rd respondent’s bundle of documents in evidence.
7. There is no response on the record from the 1st, 2nd, 4th and 5th respondents.
The issue for determination
8. As framed, the application invites the court to exercise its discretion under Order 42 rule 6 of the Civil Procedure Rules and stay the proceedings before the trial court. Before that discretion can properly be engaged, however, there is a logically prior question which the court is entitled, indeed bound, to consider even of its own motion: whether the appeal to which the application is tethered is itself competent. The decision sought to be appealed is an interlocutory ruling on the admissibility of evidence made in the course of a part-heard trial, and the question is whether such a ruling is amenable to an appeal at this stage at all. The competency of an appeal goes to the jurisdiction of the court, and it is trite, on the authority of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1, that a court must satisfy itself that it is properly seized of a matter before taking any further step in it; jurisdiction is everything and without it a court has no power to make one more step.
Analysis and determination
9. The principles upon which a stay of proceedings pending appeal may be granted are well settled. The power is discretionary; the discretion must be exercised judicially and not capriciously; and, ordinarily, the court will consider whether the appeal, or intended appeal, is arguable and not frivolous, whether the refusal of a stay would render the appeal nugatory, and where, on a balance, the interests of justice lie. It must also be borne in mind that a stay of proceedings is a grave intrusion upon the right of a litigant to prosecute his suit to its conclusion, and it is for that reason never granted as a matter of course. See, generally, In re Global Tours & Travels Limited, Nairobi (Milimani) High Court Winding-Up Cause No. 43 of 2000 [2000] eKLR.
10. The starting point must be the nature of the decision sought to be appealed. The impugned ruling resolved an objection, taken in the middle of the trial, to the production of documents by a witness. It determined no right of any party with finality. The weight, if any, to be attached to the documents remains entirely at large; the trial court, when it comes to evaluate the whole of the evidence at the close of the trial, remains free to attach little or no weight to them; and, should the eventual judgment go against the appellant, nothing whatsoever prevents him from renewing his complaint about their admission, in full and with the benefit of a complete record, on an appeal from that judgment.
11. Secondly, the right of appeal is a creature of statute; no appeal lies from any decision of a subordinate court except as conferred by law. Appeals from orders of subordinate courts are governed by section 75(1) of the Civil Procedure Act as read with Order 43 rule 1(1) of the Civil Procedure Rules, which enumerate the orders from which an appeal lies as of right. A ruling overruling an objection to the production of documents in the course of a hearing is not among the orders so enumerated. From any other order an appeal lies only with the leave of the court which, by dint of Order 43 rule 3, must in the first instance be sought from the court that made the order, and within fourteen days of the making of the order. Nothing on the record before me shows that leave to appeal was ever sought from, let alone granted by, the trial court or, for that matter, this court; the citation of Order 43 rule 3 in the heading of the notice of motion is no substitute for actually obtaining leave. The appeal before this Honourable Court is thus, incompetent.
12. There is a third and, to my mind, more fundamental consideration, and it is this: the scheme of our law is that complaints about the admission or rejection of evidence in the course of a trial are to be evaluated at the end of the trial, and against the final decision, rather than before it. Section 167(1) of the Evidence Act (Cap 80) provides as follows:
“The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.”
13. The provision is instructive. The legislature contemplates that a court confronted with a complaint of wrongful admission or rejection of evidence will ask itself whether, independently of the evidence complained of, the decision reached is sustainable, or whether the rejected evidence, had it been received, ought to have varied that decision. That inquiry is only possible where there is a decision to speak of. An interlocutory appeal of the present kind invites the appellate court to conduct the inquiry in a vacuum, before the evidence is complete and before there exists any decision against which the materiality of the disputed evidence can be measured. That is to invert the statutory scheme. The place at which the admission or rejection of evidence in the course of a trial falls to be interrogated is at the conclusion of the trial, whether before the trial court itself in its evaluation of the evidence, or on an appeal from its final decision; it is not by way of an interlocutory appeal mounted mid-stream.
14. It follows that the appellant stands to lose nothing that cannot be fully restored to him in due course. If, at the end of the trial, judgment is entered against him and he maintains that the disputed documents were wrongly admitted, that complaint will be available to him, whole and undiminished, as a ground of appeal against the judgment; and the appellate court, on such an appeal, has ample powers under section 78 of the Civil Procedure Act to re-appraise the evidence, to disregard the offending material, to reverse the decision, or to remit the suit as the justice of the case may require. The contention that the appeal will be rendered nugatory unless the trial is halted therefore fails in limine: the complaint at the heart of the appeal is one which, by its very nature, matures only upon judgment.
15. There is, in addition, a broader mischief to guard against. If every ruling on an objection to evidence could found an immediate appeal, accompanied by an application for a stay of the trial, no trial would ever proceed to its conclusion; suits would advance witness by witness and objection by objection, shuttling up and down the judicial hierarchy in the meantime. Nothing could be further removed from the overriding objective in sections 1A and 1B of the Civil Procedure Act, the duty which section 3A of the Act casts upon the parties to facilitate that objective, and the command of Article 159(2)(b) of the Constitution that justice shall not be delayed. The Court of Appeal made the point, in the analogous context of leave to appeal against interlocutory orders, in Equity Bank Limited v West Link Mbo Limited [2013] eKLR: leave is to be granted sparingly, and interlocutory decisions which do not finally dispose of the rights of the parties are, as a general rule, best assessed at the conclusion of the trial when their bearing, if any, on the final outcome can be seen.
16. The present case is, if anything, an advertisement of that mischief. The consignment at the heart of the dispute landed at the port of Mombasa in the year 2010, some sixteen years ago. The suit itself was not filed until March 2023, and the plaintiffs plead that the vehicles are in such a state of deterioration that, unless released, they risk becoming a total loss. The appeal does not go to the merits of the contest over the ownership of the consignment at all; it targets a ruling on the production of documents. To halt the trial of a dispute of this antiquity in order to litigate, at an interlocutory stage, a complaint that is properly reserved for the end of the trial would be a singularly unhappy exercise of this court’s discretion.
17. I turn to the 3rd respondent’s position, which is something of a curiosity in this application: a respondent supporting the appellant’s motion and, for good measure, seeking substantive relief of its own, namely, an order admitting in evidence its expunged bundle of documents. That prayer cannot issue in these proceedings. The 3rd respondent has preferred no appeal or cross-appeal against the expungement of its documents; and a party cannot obtain, on the back of another party’s motion for a stay of proceedings, appellate relief reversing part of the very ruling the appeal against which I have found to be incompetent. Like the appellant’s, the 3rd respondent’s complaint about the fate of its documents is one to be pursued before the trial court in the first instance and, if need be, on an appeal from the final decision.
18. As for the 3rd respondent’s contention that the subject matter of the suit exceeds the pecuniary jurisdiction of the trial court, the point is, no doubt, fundamental in nature, for jurisdiction is the lifeblood of any adjudication. But it is not properly before me. It was not a ground of the appeal; it was not the subject of the impugned ruling; and it surfaces for the first time in a replying affidavit to an application for a stay of proceedings. An objection to the pecuniary jurisdiction of the trial court is one to be taken before that court, which is perfectly competent to inquire into and pronounce upon a challenge to its own jurisdiction, and whose decision on the point would then be amenable to challenge in the ordinary way. I therefore say nothing about the merits of the objection, and nothing in this ruling should be understood to foreclose it.
19. The upshot is this: the appeal upon which the application is anchored is incompetent, and an incompetent appeal can anchor nothing, least of all a stay of proceedings. But even if the appeal were competent, the application would still fail on the settled principles. The appeal raises a complaint that will remain fully available to the appellant at the conclusion of the trial; the refusal of a stay will accordingly render nothing nugatory; and the balance of justice tilts decisively in favour of the expeditious conclusion of a trial concerning a consignment that has lain at the port for the better part of two decades.
Disposition
20. In the result, I make the following orders:
(a) the notice of motion dated 9th June 2025 is dismissed;
(b) the appeal herein, being incompetent, is struck out;
(c) the hearing of Mombasa Chief Magistrate’s Court Civil Case No. E310 of 2023 shall proceed before the trial court and shall be concluded on a priority basis; and
(d) the costs of the application and of the appeal shall abide the outcome of the suit before the trial court.
It is so ordered.