APPLICANTS CASE
1. ABDULHAKIM ABEID KHAMIS, JAMAL ALBEID KHAMIS, MOHAMED ABEID KHAMIS AND GHANIA KARAMA, the Applicants/Defendants herein have brought an application dated 2nd July 2026, seeking stay of proceedings in Mombasa ELC Case No. 6 OF 1972 including the hearing and determination of the Plaintiffs Application dated 25th May 2026 pending the hearing and determination of Court of Appeal Civil Appeal No. E109 OF 2026.
2. The Applicants contend that vide a Notice of Motion dated 15th September 2025, the court included them as defendants in the suit. However, the Plaintiffs failed to amend the Plaint so as to cater for their inclusion, stated the course of action and further, failed to serve them with summons to enter appearance.
3. On 24th April 2026, the Applicants aver, that the court set aside the judgment dated 15th May 2014, the decree and orders issued on 11th June 2025 and directed the suit to proceed for hearing. Aggrieved by the decision, the Applicant has now lodged an Appeal No.109 of 2026.
4. According to the Applicant the Appeal will determine the proper foundation, parties, pleadings scope and procedure of any further proceedings in the suit. They contend that the proceedings if continued will render the Appeal nugatory.
RESPONDENTS CASE
5. The Respondent filed a replying affidavit dated 18th July 2026, sworn by Jumwa Katana Ruwa where she contends that she is quite elderly and it would please her to have this matter heard and finalized. She avers that were kicked out of the suit premises on multiple occasions and at some point, all the Plaintiffs went separate ways. Further, she has been informed that some of the Plaintiffs had passed on. Since the Applicants had requested the court to set the judgment aside and the same was done, the matter should be heard and determined.
SUBMISSIONS
APPLICANTS SUBMISSIONS
6. The Applicants submit that the court has jurisdiction to stay execution or stay proceedings under Order 42 rule 6(1) of the Civil Procedure Rules to preserve the subject matter and ensure just determination of appeal. They submit that they have demonstrated that they have sufficient cause by the fact that there is already an appeal that has been lodged, which appeal raises issues to do with the validity of pleadings, courts failure to order consequential restitution and rectification of land registry that were subsisting even after the judgment and decree that gave rise to the same were vacated, the dispute concerns a large body of land whose alteration cannot be compensated by an award of costs and that the appeal attacks legal and procedural foundation of the retrial without amendment of pleadings.
7. According to the Applicants, in the event the suit proceeds before the questions raised in the Appeal are resolved, the parties will not only incur avoidable expenses but also, evidence will be received, findings will be made and further orders issued on a platform that the court of Appeal may hold was not legally constituted. Further, the nature of the property, that is Title No. C.R 7981, Plot No. 423/1/MN is occupied by different persons and orders made during the pendency of the appeal may alter expectations in a manner that costs cannot reverse.
8. The Applicants submit that the object of stay is to ensure that adjudication occurs once before proper parties upon regularized pleadings. They relied on the case of Equity Bank v West Kenya Link Mbo Limited and Law Society of Kenya v Attorney General & Another [2019] KESC 16(KLR).
9. Further, the Applicants submit that provisions of section 1A and 1B of the Civil Procedure Act are complementary. They submit that, expedition is not achieved by accelerating a trial which is under active appellate challenge but by preventing duplicative proceedings.
10. The Applicants contend that the court could not properly order a retrial against newly joined defendants before the plaint was amended, disclosing the claims against them and before summons were issued and served. Further, a question is raised regarding the capacity and authority of the persons in whose names further steps is being taken. There is an absence of clear authority for a party to appear for others as there allegedly exists other deceased Plaintiffs.
11. The Applicants submit that they have raised sufficient cause that the Notice of Motion ought to be allowed.
ANALYSIS AND DETERMINATION
12. The court has analyzed the Application, the Supporting Affidavits and the Submissions filed by the parties and the issue for determination is whether there is the application for stay of proceedings is merited.
13. It is not in dispute that the court has discretion to grant stay pending appeal, however, in exercising such discretion, the court has to be informed by the overriding objective under Section 1A and 1B of the Civil Procedure Act, which places an obligation upon the court to conduct matters in a manner that is just, expeditious and proportionate. Article 159 of the constitution on the other hand requires justice to be administered without undue regard to procedural technicalities. In the case of Global Tours and Travels Limited Nairobi High Court Winding Up Case No. 43 of 2000, the court stated thus; “As I understand, whether or not to grant stay of proceedings or further proceedings of 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 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 whether or not the intended Appeal 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.”
14. The same was echoed in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where the court stated “stay of proceeding 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 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.”
15. The court has considered the Application by and the reasons advanced for the Appeal and it finds that the intended Appeal challenges the decision of the court setting aside the judgment of 15th May 2014 and the orders issued on 11th June 2025. Their main issue for contention by the Applicants are that even after being enjoined as defendants in the suit, the Respondents failed to amend their Plaint so as to disclose the course of action against the Applicant. Further, the Plaintiff failed to include them in the suit as defendants. The court finds that the issues are procedural in nature and can be well regulated by the trial court.
16. The mechanisms for addressing the issues raised by the Applicant are also well provided for under Order 8 Rule 5 of the Civil Procedure Rules. Where parties have a question in controversy the court has the discretion to allow amendment of pleadings at any point, to allow the determination of such question that is in controversy. This court finds that the procedural defects raised by the Applicants are not invariably fatal and are capable of being cured by the trial court.
17. The Applicants have further contended that evidence may be received defective pleadings and findings ultimately made. This court finds that the Applicants have not demonstrated the prejudice that will be suffered. In the event the court of appeal decides that the trial court was in error in allowing the matter to proceed, adequate remedies shall be provided by the Appellate court. In any case, the Appellants have not demonstrated to the court why the issues raised could not be resolved by court through appropriate interlocutory application before hearing commenced. This court therefore finds that the continuation of the suit will not render the Appeal nugatory.
18. In conclusion, the court has considered the age of the suit before it and the duty bestowed on it by Section 1A and 1B of the civil Procedure Act as read together with Article 159(2)(b) of the Constitution of Kenya 2010. This suit has lingered in court for over five decades, the Applicants have not demonstrated justifiable and exceptional circumstances for granting stay of proceedings. Granting stay would not be in the interest of justice as it would further delay in a matter that has already been protracted.
19. The court therefore finds that the Notice of Motion dated 2nd July 2026 is without merit and is dismissed with costs to the Respondents.
1. ABDULHAKIM ABEID KHAMIS, JAMAL ALBEID KHAMIS, MOHAMED ABEID KHAMIS AND GHANIA KARAMA, the Applicants/Defendants herein have brought an application dated 2nd July 2026, seeking stay of proceedings in Mombasa ELC Case No. 6 OF 1972 including the hearing and determination of the Plaintiffs Application dated 25th May 2026 pending the hearing and determination of Court of Appeal Civil Appeal No. E109 OF 2026.
2. The Applicants contend that vide a Notice of Motion dated 15th September 2025, the court included them as defendants in the suit. However, the Plaintiffs failed to amend the Plaint so as to cater for their inclusion, stated the course of action and further, failed to serve them with summons to enter appearance.
3. On 24th April 2026, the Applicants aver, that the court set aside the judgment dated 15th May 2014, the decree and orders issued on 11th June 2025 and directed the suit to proceed for hearing. Aggrieved by the decision, the Applicant has now lodged an Appeal No.109 of 2026.
4. According to the Applicant the Appeal will determine the proper foundation, parties, pleadings scope and procedure of any further proceedings in the suit. They contend that the proceedings if continued will render the Appeal nugatory.
RESPONDENTS CASE
5. The Respondent filed a replying affidavit dated 18th July 2026, sworn by Jumwa Katana Ruwa where she contends that she is quite elderly and it would please her to have this matter heard and finalized. She avers that were kicked out of the suit premises on multiple occasions and at some point, all the Plaintiffs went separate ways. Further, she has been informed that some of the Plaintiffs had passed on. Since the Applicants had requested the court to set the judgment aside and the same was done, the matter should be heard and determined.
SUBMISSIONS
APPLICANTS SUBMISSIONS
6. The Applicants submit that the court has jurisdiction to stay execution or stay proceedings under Order 42 rule 6(1) of the Civil Procedure Rules to preserve the subject matter and ensure just determination of appeal. They submit that they have demonstrated that they have sufficient cause by the fact that there is already an appeal that has been lodged, which appeal raises issues to do with the validity of pleadings, courts failure to order consequential restitution and rectification of land registry that were subsisting even after the judgment and decree that gave rise to the same were vacated, the dispute concerns a large body of land whose alteration cannot be compensated by an award of costs and that the appeal attacks legal and procedural foundation of the retrial without amendment of pleadings.
7. According to the Applicants, in the event the suit proceeds before the questions raised in the Appeal are resolved, the parties will not only incur avoidable expenses but also, evidence will be received, findings will be made and further orders issued on a platform that the court of Appeal may hold was not legally constituted. Further, the nature of the property, that is Title No. C.R 7981, Plot No. 423/1/MN is occupied by different persons and orders made during the pendency of the appeal may alter expectations in a manner that costs cannot reverse.
8. The Applicants submit that the object of stay is to ensure that adjudication occurs once before proper parties upon regularized pleadings. They relied on the case of Equity Bank v West Kenya Link Mbo Limited and Law Society of Kenya v Attorney General & Another [2019] KESC 16(KLR).
9. Further, the Applicants submit that provisions of section 1A and 1B of the Civil Procedure Act are complementary. They submit that, expedition is not achieved by accelerating a trial which is under active appellate challenge but by preventing duplicative proceedings.
10. The Applicants contend that the court could not properly order a retrial against newly joined defendants before the plaint was amended, disclosing the claims against them and before summons were issued and served. Further, a question is raised regarding the capacity and authority of the persons in whose names further steps is being taken. There is an absence of clear authority for a party to appear for others as there allegedly exists other deceased Plaintiffs.
11. The Applicants submit that they have raised sufficient cause that the Notice of Motion ought to be allowed.
ANALYSIS AND DETERMINATION
12. The court has analyzed the Application, the Supporting Affidavits and the Submissions filed by the parties and the issue for determination is whether there is the application for stay of proceedings is merited.
13. It is not in dispute that the court has discretion to grant stay pending appeal, however, in exercising such discretion, the court has to be informed by the overriding objective under Section 1A and 1B of the Civil Procedure Act, which places an obligation upon the court to conduct matters in a manner that is just, expeditious and proportionate. Article 159 of the constitution on the other hand requires justice to be administered without undue regard to procedural technicalities. In the case of Global Tours and Travels Limited Nairobi High Court Winding Up Case No. 43 of 2000, the court stated thus; “As I understand, whether or not to grant stay of proceedings or further proceedings of 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 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 whether or not the intended Appeal 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.”
14. The same was echoed in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where the court stated “stay of proceeding 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 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.”
15. The court has considered the Application by and the reasons advanced for the Appeal and it finds that the intended Appeal challenges the decision of the court setting aside the judgment of 15th May 2014 and the orders issued on 11th June 2025. Their main issue for contention by the Applicants are that even after being enjoined as defendants in the suit, the Respondents failed to amend their Plaint so as to disclose the course of action against the Applicant. Further, the Plaintiff failed to include them in the suit as defendants. The court finds that the issues are procedural in nature and can be well regulated by the trial court.
16. The mechanisms for addressing the issues raised by the Applicant are also well provided for under Order 8 Rule 5 of the Civil Procedure Rules. Where parties have a question in controversy the court has the discretion to allow amendment of pleadings at any point, to allow the determination of such question that is in controversy. This court finds that the procedural defects raised by the Applicants are not invariably fatal and are capable of being cured by the trial court.
17. The Applicants have further contended that evidence may be received defective pleadings and findings ultimately made. This court finds that the Applicants have not demonstrated the prejudice that will be suffered. In the event the court of appeal decides that the trial court was in error in allowing the matter to proceed, adequate remedies shall be provided by the Appellate court. In any case, the Appellants have not demonstrated to the court why the issues raised could not be resolved by court through appropriate interlocutory application before hearing commenced. This court therefore finds that the continuation of the suit will not render the Appeal nugatory.
18. In conclusion, the court has considered the age of the suit before it and the duty bestowed on it by Section 1A and 1B of the civil Procedure Act as read together with Article 159(2)(b) of the Constitution of Kenya 2010. This suit has lingered in court for over five decades, the Applicants have not demonstrated justifiable and exceptional circumstances for granting stay of proceedings. Granting stay would not be in the interest of justice as it would further delay in a matter that has already been protracted.
19. The court therefore finds that the Notice of Motion dated 2nd July 2026 is without merit and is dismissed with costs to the Respondents.