1. Ngumbao Mkamba the applicant/appellant herein has filed before this Court a Notice of Motion dated 15th September 2025 seeking one substantive order that pending the hearing and determination of the instant appeal this court issues an order of stay of proceedings in Kwale MCCC No. E139 of 2021.
2. The application is filed under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 15th September 2025 by Ngumbao Mkamba, the appellant/applicant.
3. The grounds, laid out in several paragraphs and expounded in the supporting affidavit can be summarized as follows. The trial court on 21st July 2025 dismissed an application by the appellant dated 26th June 2025 and amended on 7th July 2025 seeking issuance of summons to the OCS Diani police station to produce the Occurrence Book (OB) in relation to two conflicting police abstracts produced in the case proceeding before the magistrate’s court. Upon dismissal of the application, the trial court gave directions that the case would be mentioned on 15th August 2025 for parties to file submissions and then fix a date for judgment.
4. The appellant was aggrieved by that ruling and filed the appeal herein through the memorandum of appeal dated 15th September 2025 expressing his dissatisfaction with the ruling and praying that the ruling be set aside. The applicant deposes that the grounds of appeal are arguable and raising serious triable issues which will have an impact upon the parties and the trial court’s judgment in Kwale MCCC No. E139 of 2021 and that no prejudice will be occasioned to the respondent if the order of stay of proceedings is granted.
5. The respondent did not respond to the application. All the same, the court has to consider its merit. 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.
6. The applicant based his submissions entirely on Order 42 Rule 6 of the Civil Procedure Rules which provides for stay of execution. That was erroneous because the application herein was for stay of proceedings. The requirements for stay of proceedings are different from those of stay of execution. There is guidance on this difference in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated as follows:
“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.”
7. The application that was dismissed by the trial court was an interlocutory application. It touches on the issue of the authenticity of two apparently police abstracts issued to parties in the case but with conflicting contents. I think there is an arguable point there, on whether or not the proceedings should have been reopened to give an opportunity to the trial court to conclusively consider the issue. In this case, unlike what the learned author in Halsbury’s Laws of England above was alluding to, the proceedings are not to be stayed in order to consider the merits of the suit, in the sense of whether the proceedings before the trial court are frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. It is for this court to consider whether if the trial court is left to go on with the trial there will be prejudice occasioned to either of the parties who wished to bring clarity to supposedly conflicting evidence tendered before the trial court. I note that the respondent did not find necessary to oppose this application even as it opposed the application before the trial court.
8. There is no doubt that the appeal herein will inevitably delay the determination of the case before the trial court, seeing that it had reached judgment stage. However, considering that making a proper and informed decision by a court is at the core of every trial, I find that a little delay in seeking clarity on material evidence in a case would not gravely prejudice the respondent.
9. So that if on appeal, this court decides that the trial court was correct in declining to summon the OCS, well and good, it will have sanctioned the trial court to rely on the material before it and none of the parties can complain that it was not accorded a fair hearing in the case. On the other hand, if this court decides otherwise, the trial court will then have an opportunity to way the supposedly conflicting police abstracts and make its determination based the evidence.
10. Consequently, this court finds that the applicant’s notice of motion has merit and the same is allowed. The proceedings before the Kwale Magistrate’s Court in MCC No. E139 of 2021 are hereby stayed pending the hearing and determination of the appeal herein.
11. Costs shall be in the cause of the appeal.
12. Orders accordingly.
13. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 28th day of January 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Otuya (Ms) for the Applicant/Appellant.
N/A. for the Respondent.
Ummu: Court Assistant.
2. The application is filed under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 15th September 2025 by Ngumbao Mkamba, the appellant/applicant.
3. The grounds, laid out in several paragraphs and expounded in the supporting affidavit can be summarized as follows. The trial court on 21st July 2025 dismissed an application by the appellant dated 26th June 2025 and amended on 7th July 2025 seeking issuance of summons to the OCS Diani police station to produce the Occurrence Book (OB) in relation to two conflicting police abstracts produced in the case proceeding before the magistrate’s court. Upon dismissal of the application, the trial court gave directions that the case would be mentioned on 15th August 2025 for parties to file submissions and then fix a date for judgment.
4. The appellant was aggrieved by that ruling and filed the appeal herein through the memorandum of appeal dated 15th September 2025 expressing his dissatisfaction with the ruling and praying that the ruling be set aside. The applicant deposes that the grounds of appeal are arguable and raising serious triable issues which will have an impact upon the parties and the trial court’s judgment in Kwale MCCC No. E139 of 2021 and that no prejudice will be occasioned to the respondent if the order of stay of proceedings is granted.
5. The respondent did not respond to the application. All the same, the court has to consider its merit. 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.
6. The applicant based his submissions entirely on Order 42 Rule 6 of the Civil Procedure Rules which provides for stay of execution. That was erroneous because the application herein was for stay of proceedings. The requirements for stay of proceedings are different from those of stay of execution. There is guidance on this difference in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated as follows:
“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.”
7. The application that was dismissed by the trial court was an interlocutory application. It touches on the issue of the authenticity of two apparently police abstracts issued to parties in the case but with conflicting contents. I think there is an arguable point there, on whether or not the proceedings should have been reopened to give an opportunity to the trial court to conclusively consider the issue. In this case, unlike what the learned author in Halsbury’s Laws of England above was alluding to, the proceedings are not to be stayed in order to consider the merits of the suit, in the sense of whether the proceedings before the trial court are frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. It is for this court to consider whether if the trial court is left to go on with the trial there will be prejudice occasioned to either of the parties who wished to bring clarity to supposedly conflicting evidence tendered before the trial court. I note that the respondent did not find necessary to oppose this application even as it opposed the application before the trial court.
8. There is no doubt that the appeal herein will inevitably delay the determination of the case before the trial court, seeing that it had reached judgment stage. However, considering that making a proper and informed decision by a court is at the core of every trial, I find that a little delay in seeking clarity on material evidence in a case would not gravely prejudice the respondent.
9. So that if on appeal, this court decides that the trial court was correct in declining to summon the OCS, well and good, it will have sanctioned the trial court to rely on the material before it and none of the parties can complain that it was not accorded a fair hearing in the case. On the other hand, if this court decides otherwise, the trial court will then have an opportunity to way the supposedly conflicting police abstracts and make its determination based the evidence.
10. Consequently, this court finds that the applicant’s notice of motion has merit and the same is allowed. The proceedings before the Kwale Magistrate’s Court in MCC No. E139 of 2021 are hereby stayed pending the hearing and determination of the appeal herein.
11. Costs shall be in the cause of the appeal.
12. Orders accordingly.
13. Delivered, dated and signed on the Virtual Platform, Microsoft Teams this 28th day of January 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Otuya (Ms) for the Applicant/Appellant.
N/A. for the Respondent.
Ummu: Court Assistant.