1. The present appeal, commenced by Peter Kinyanjui Njuguna t/a Proton Auctioneers (hereinafter referred to as “the Applicant”) vide the amended memorandum of appeal dated 16th July, 2025 emanates from the ruling and order of Hon. G.N. Barasah delivered on 10th July, 2025 in Kisumu CM’s Miscellaneous Case No. E004 of 2025.
2. The grounds of appeal are set out as follows:
a. The learned Magistrate completely misunderstood the evidence before her, wrongly analyzed the evidence and therefore came to wrong conclusions of fact and law.
b. The learned Magistrate erred in law and in fact by finding that the Appellant was in contempt without providing the proof that the order that was issued by the court was served upon the Appellant.
c. The learned Magistrate erred in law and in fact by finding the Appellant in contempt without taking into consideration that she lacked the jurisdiction to handle such an application.
d. The learned Magistrate erred in law and in fact by finding that M. Yousaf, Rizwan Ahmed and Maqsood Ahmed for contempt (sic) yet they were not parties to the application herein.
e. The learned Magistrate totally misunderstood and wrongly evaluated the evidence before him and therefore arrived at a wrong conclusion.
3. Contemporaneous with the appeal, the Applicant filed an application by motion on notice dated 16th July, 2025 under certificate of urgency seeking the following orders:
4. The grounds upon which the application is premised are set out on its face and are as follows:
5. The application is supported by the Applicant’s affidavit sworn on 16th July, 2025 in which he expounds on the above grounds, in precis as follows:
- That on 10th July, 2025, the lower court rendered a ruling in which it found the Applicant to be in contempt of court and set a date for sentencing on 17th July, 2025. (Annexture PKN is a copy of the ruling).
- That the Applicant has since preferred an appeal against the ruling and order of the lower court and urges that his appeal will be rendered nugatory if this court does not order for stay of proceedings of the matter before the lower court.
- That the Applicant’s appeal has high chances of success.
- That the Applicant stands to suffer substantial loss if the orders sought in the motion are not granted.
6. When the application was first placed before me ex parte on 19th July, 2025, I made the following orders:
1. THAT the application is certified urgent.
2. THAT the application and the memorandum of appeal to be served upon all the concerned parties (in the matter before the lower court) by close of business on 21st July, 2025.
3. THAT any party that wishes to respond to the application to file and serve their respective responses by close of business on 23rd July, 2025.
4. THAT the Applicant to file and serve a further affidavit, if need be, together with submissions that do not exceed three (3) typed pages by close of business on 26th July, 2025. The parties who wish to oppose the application to file and serve their respective submissions that do not exceed three (3) typed pages by close of business on 29th July, 2025. The application to be mentioned on 31st July, 2025 for further directions. The timelines granted herein shall not be subject to extension.
5. THAT in the intervening period, prayer 2 of the application is granted on a temporary basis until 31st July, 2025.
7. The matter came up for directions on the motion on 31st July, 2025 and it was clear to me that although service had been effected upon the Respondent, the Applicant did not comply with the order requiring him to file submissions within strict timelines and no tenable reason was given for the non-compliance. The Applicant opted instead to rely entirely on the affidavit in support of the application.
8. I have considered the application, the supporting affidavit and the record before me. The issue for determination is whether the Applicant has made out a case that would warrant an order of stay of proceedings before the lower court pending the determination of the instant appeal.
9. In the case of Kenya Wildlife Service v James Mutembei [2019] eKLR the court reiterated that the power to stay proceedings should be used sparingly and only in exceptional cases.
10. The court, in the case of David Morton Silverstein v Atsango Chesoni [2002] eKLR held that a stay of proceedings pending appeal is a serious judicial action which interferes with the right to have a matter determined expeditiously and must therefore be cautiously considered and sparingly granted.
11. No doubt, stay of proceedings is a discretionary relief. The court, when considering an application for stay of proceedings before a lower court must be satisfied that the party seeking the relief has met the following conditions:
a. That the Applicant has preferred or filed an appeal.
b. That the application has been made timeously and/or without delay.
c. That substantial loss may result if the order for stay of proceedings is not granted.
d. That the appeal is arguable and not frivolous.
12. For a party to be successful in an application for stay of proceedings of a lower court pending appeal, he must establish all the four conditions stated above.
13. My perusal of the present record leaves me with no doubt that the Applicant has met conditions a, b and c above. I will then move to consider whether condition d has been proved.
14. To show that an appeal is arguable in the context of an application for stay of proceedings pending appeal, the Applicant must demonstrate that the appeal raises serious questions of law or fact that merit consideration by the appellate court, not that the appeal will necessarily succeed.
15. In considering such an application, courts do not require a detailed analysis of the merits of the appeal, but will assess whether the issues or grounds of appeal presented are not frivolous, vexatious, or hopeless. Thus then, the Applicant has the duty to identify errors of law, misdirection, or misapplication of evidence or procedure by the lower court, and not merely state that the lower court fell into error in reaching the impugned order.
16. Although the Applicant has set out his grounds of appeal in the memorandum of appeal, one would have fairly and reasonably expected that the Applicant would proceed to canvass and expound on and/or highlight the same so as to show that indeed his appeal is arguable. That, obviously, is the reason as to why I directed that he files his submissions through which he would have then showed that his appeal is not frivolous, vexatious or hopeless. The Applicant failed to do so, with the result that he did not demonstrate that his appeal is arguable. Apart from merely stating in his supporting affidavit that he has an arguable appeal, he did not proffer the basis upon which the court should reach that finding.
17. It is not sufficient, in my view for the Applicant to merely state that he has an arguable appeal. It was incumbent upon him to demonstrate that indeed his appeal is arguable, especially in circumstances such as are in the present case, where the proceedings that resulted in the impugned order are not annexed to the affidavit in support of the application.
18. The result of the above is that I remain with no option but to reach the finding that the fourth ground that is requisite to granting an order of stay of the lower court’s proceedings has not been established and the application, on that basis, fails. I proceed to dismiss it with no order as to costs as the Respondent did not respond to the motion.
19. For avoidance of doubt, the interim order of stay of the proceedings of the lower court issued on 19th July, 2025 is hereby vacated.
20. Orders accordingly.
DELIVERED, DATED and SIGNED this 1st day of August, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPLICANT: No appearance.
FOR THE RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Court: Mention for directions on the appeal to be on 23rd October, 2025.
JOE M. OMIDO
JUDGE
2. The grounds of appeal are set out as follows:
a. The learned Magistrate completely misunderstood the evidence before her, wrongly analyzed the evidence and therefore came to wrong conclusions of fact and law.
b. The learned Magistrate erred in law and in fact by finding that the Appellant was in contempt without providing the proof that the order that was issued by the court was served upon the Appellant.
c. The learned Magistrate erred in law and in fact by finding the Appellant in contempt without taking into consideration that she lacked the jurisdiction to handle such an application.
d. The learned Magistrate erred in law and in fact by finding that M. Yousaf, Rizwan Ahmed and Maqsood Ahmed for contempt (sic) yet they were not parties to the application herein.
e. The learned Magistrate totally misunderstood and wrongly evaluated the evidence before him and therefore arrived at a wrong conclusion.
3. Contemporaneous with the appeal, the Applicant filed an application by motion on notice dated 16th July, 2025 under certificate of urgency seeking the following orders:
4. The grounds upon which the application is premised are set out on its face and are as follows:
5. The application is supported by the Applicant’s affidavit sworn on 16th July, 2025 in which he expounds on the above grounds, in precis as follows:
- That on 10th July, 2025, the lower court rendered a ruling in which it found the Applicant to be in contempt of court and set a date for sentencing on 17th July, 2025. (Annexture PKN is a copy of the ruling).
- That the Applicant has since preferred an appeal against the ruling and order of the lower court and urges that his appeal will be rendered nugatory if this court does not order for stay of proceedings of the matter before the lower court.
- That the Applicant’s appeal has high chances of success.
- That the Applicant stands to suffer substantial loss if the orders sought in the motion are not granted.
6. When the application was first placed before me ex parte on 19th July, 2025, I made the following orders:
1. THAT the application is certified urgent.
2. THAT the application and the memorandum of appeal to be served upon all the concerned parties (in the matter before the lower court) by close of business on 21st July, 2025.
3. THAT any party that wishes to respond to the application to file and serve their respective responses by close of business on 23rd July, 2025.
4. THAT the Applicant to file and serve a further affidavit, if need be, together with submissions that do not exceed three (3) typed pages by close of business on 26th July, 2025. The parties who wish to oppose the application to file and serve their respective submissions that do not exceed three (3) typed pages by close of business on 29th July, 2025. The application to be mentioned on 31st July, 2025 for further directions. The timelines granted herein shall not be subject to extension.
5. THAT in the intervening period, prayer 2 of the application is granted on a temporary basis until 31st July, 2025.
7. The matter came up for directions on the motion on 31st July, 2025 and it was clear to me that although service had been effected upon the Respondent, the Applicant did not comply with the order requiring him to file submissions within strict timelines and no tenable reason was given for the non-compliance. The Applicant opted instead to rely entirely on the affidavit in support of the application.
8. I have considered the application, the supporting affidavit and the record before me. The issue for determination is whether the Applicant has made out a case that would warrant an order of stay of proceedings before the lower court pending the determination of the instant appeal.
9. In the case of Kenya Wildlife Service v James Mutembei [2019] eKLR the court reiterated that the power to stay proceedings should be used sparingly and only in exceptional cases.
10. The court, in the case of David Morton Silverstein v Atsango Chesoni [2002] eKLR held that a stay of proceedings pending appeal is a serious judicial action which interferes with the right to have a matter determined expeditiously and must therefore be cautiously considered and sparingly granted.
11. No doubt, stay of proceedings is a discretionary relief. The court, when considering an application for stay of proceedings before a lower court must be satisfied that the party seeking the relief has met the following conditions:
a. That the Applicant has preferred or filed an appeal.
b. That the application has been made timeously and/or without delay.
c. That substantial loss may result if the order for stay of proceedings is not granted.
d. That the appeal is arguable and not frivolous.
12. For a party to be successful in an application for stay of proceedings of a lower court pending appeal, he must establish all the four conditions stated above.
13. My perusal of the present record leaves me with no doubt that the Applicant has met conditions a, b and c above. I will then move to consider whether condition d has been proved.
14. To show that an appeal is arguable in the context of an application for stay of proceedings pending appeal, the Applicant must demonstrate that the appeal raises serious questions of law or fact that merit consideration by the appellate court, not that the appeal will necessarily succeed.
15. In considering such an application, courts do not require a detailed analysis of the merits of the appeal, but will assess whether the issues or grounds of appeal presented are not frivolous, vexatious, or hopeless. Thus then, the Applicant has the duty to identify errors of law, misdirection, or misapplication of evidence or procedure by the lower court, and not merely state that the lower court fell into error in reaching the impugned order.
16. Although the Applicant has set out his grounds of appeal in the memorandum of appeal, one would have fairly and reasonably expected that the Applicant would proceed to canvass and expound on and/or highlight the same so as to show that indeed his appeal is arguable. That, obviously, is the reason as to why I directed that he files his submissions through which he would have then showed that his appeal is not frivolous, vexatious or hopeless. The Applicant failed to do so, with the result that he did not demonstrate that his appeal is arguable. Apart from merely stating in his supporting affidavit that he has an arguable appeal, he did not proffer the basis upon which the court should reach that finding.
17. It is not sufficient, in my view for the Applicant to merely state that he has an arguable appeal. It was incumbent upon him to demonstrate that indeed his appeal is arguable, especially in circumstances such as are in the present case, where the proceedings that resulted in the impugned order are not annexed to the affidavit in support of the application.
18. The result of the above is that I remain with no option but to reach the finding that the fourth ground that is requisite to granting an order of stay of the lower court’s proceedings has not been established and the application, on that basis, fails. I proceed to dismiss it with no order as to costs as the Respondent did not respond to the motion.
19. For avoidance of doubt, the interim order of stay of the proceedings of the lower court issued on 19th July, 2025 is hereby vacated.
20. Orders accordingly.
DELIVERED, DATED and SIGNED this 1st day of August, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPLICANT: No appearance.
FOR THE RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Court: Mention for directions on the appeal to be on 23rd October, 2025.
JOE M. OMIDO
JUDGE