1. I have considered the Notice of Motion Application dated 19th December 2024 together with the supporting affidavit sworn on even date and the replying affidavit sworn on 14th February 2025 in opposition to the same together with the submission of the parties and the applicable law.
2. The Application seeks a stay of proceedings in the lower court, Milimani Commercial Civil Suit No E5014 of 2023 on the basis that the applicant filed a notice of motion dated 21 June 2024 which was dismissed by the ruling delivered on 19 November 2024. That application sought security for costs from the respondent.
3. I note from the outset, that the said ruling has not been attached to the supporting affidavit to the present Application and has not been presented as an exhibit.
4. The law applicable to the present Application if found in Kenya Wildlife Service Vs James Mutembei (2019) eKLR, where Gikonyo J held 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”.
5. Guided by the above, the order sought by the applicant are a discretionary power, exercisable by the court upon consideration of the facts and circumstances of each case.
6. Having considered reasons provided by counsel and the law in relation to the above application, I am satisfied that the Application is without merit.
7. I say so because a finding by the lower court that an order for security is not warranted, which is a discretionary remedy, is not, in my view, an appropriate ground to stop, or stay all proceedings in the lower court pending the outcome of an appeal. I do not think the threshold as stated above has been met.
8. Moreover, as a matter of judicial policy, if the High Court were to stop all proceedings in the lower court each time a party does not receive a favourable ruling in relation to security, our courts would be unduly congested, and it would be impossible to clear backlog, or deal with cases expeditiously. Finally, I am satisfied that no undue prejudice will be occasioned to the applicant by awaiting the determination and conclusion of his appeal which is pending.
9. Based on the reasons set out above, the Application is dismissed with costs.
2. The Application seeks a stay of proceedings in the lower court, Milimani Commercial Civil Suit No E5014 of 2023 on the basis that the applicant filed a notice of motion dated 21 June 2024 which was dismissed by the ruling delivered on 19 November 2024. That application sought security for costs from the respondent.
3. I note from the outset, that the said ruling has not been attached to the supporting affidavit to the present Application and has not been presented as an exhibit.
4. The law applicable to the present Application if found in Kenya Wildlife Service Vs James Mutembei (2019) eKLR, where Gikonyo J held 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”.
5. Guided by the above, the order sought by the applicant are a discretionary power, exercisable by the court upon consideration of the facts and circumstances of each case.
6. Having considered reasons provided by counsel and the law in relation to the above application, I am satisfied that the Application is without merit.
7. I say so because a finding by the lower court that an order for security is not warranted, which is a discretionary remedy, is not, in my view, an appropriate ground to stop, or stay all proceedings in the lower court pending the outcome of an appeal. I do not think the threshold as stated above has been met.
8. Moreover, as a matter of judicial policy, if the High Court were to stop all proceedings in the lower court each time a party does not receive a favourable ruling in relation to security, our courts would be unduly congested, and it would be impossible to clear backlog, or deal with cases expeditiously. Finally, I am satisfied that no undue prejudice will be occasioned to the applicant by awaiting the determination and conclusion of his appeal which is pending.
9. Based on the reasons set out above, the Application is dismissed with costs.