This ruling is in respect of the Notice of Motion application dated 10th November, 2025, which seeks orders that the honourable court be pleased to issue an order to stay the matter pending the determination in the ELC CASE NO E006 OF 2023 and WINAM EL CASE NO.13 OF 2021, as the subject matter is the same.
The application was supported by the averments in the Supporting Affidavit and the Supplementary Affidavit of DANIEL OTIENO AGOLA, the applicant.
The application was opposed by the 1st Respondent/plaintiff, who filed grounds of opposition and a Replying Affidavit.
The 2nd Respondent did not file any document in response to the application. He left the matter to the court to decide.
The applicant’s case is that this matter is the same as ELC No. E006 of 2023 and WINAM MCELC NO 13 OF 2021. That the applicant has locus standi as the administrator of the estate of his late father, Gordon Mark Agola Hongo, the original owner of KISUMU/KANYAKWAR PLOT NO. 385. That the issues raised in the suit concern ownership, occupation, and protection of the suit land, which is also the subject of the pending proceedings in Case No. ELC E006 of 2023 and Winam MCEL No. 13 of 2021. That, unless the stay is granted, there is a risk of conflicting decisions from the courts.
The case of the 1st Respondent/Plaintiff is that the application is incompetent and bad in law, that the applicant lacks locus standi to bring the application, having been found by the Honourable Court to have no legal basis or beneficial interest in the suit property, and that the judgment of the court conclusively determined that the suit property does not form part of KISUMU/KANYAKWAR B/384, 385, and 844. That the issues raised in the application are therefore res judicata and that the court is functus officio. That the application is an abuse of the court process and is intended to delay and frustrate execution of the judgment.
The applicant filed written submissions dated 7th April 2026, which I have read and considered. The 1st Respondent/Plaintiff relied on the grounds of opposition filed and the averments in the Replying Affidavit of Ruth Akinyi Olum, sworn on 5th May 2026.
I have considered the application and the opposition thereto. The substantive relief sought is an order staying the proceedings in the present suit pending the determination of the two suits quoted in the application. The existence and status of the said suits were not demonstrated. The nexus between the present suit and the other suits was also not demonstrated. Further, the present suit is concluded. In Global Tours & Travels Limited, Nairobi HC Winding up Cause No. 43 of 2000 Ringera J, (as he then was) stated that: -
“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.”
And in Kenya Wildlife Service Vs James Mutembei (2019) eKLR, it was held that:
“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay, and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent”.
In the present case, given that the suit whose proceedings are sought to be stayed is concluded and in the absence of any information on the existence, nature, and status of the other suits and their nexus with the present case, I find that the grounds for stay of proceedings have not been demonstrated. The application is dismissed. Costs to the 1st Respondent/Plaintiff.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered this 2nd day of July 2026 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Atika - Court Assistant.
No appearance for the Applicant.
Olum for the Plaintiff.
No appearance for the Defendants.
| ELC 196/2013 RULING 2 |