1. The Appellant/Applicant moved this Court by a Notice of Motion dated 7th September 2026 seeking, principally, an order of stay of execution pending appeal. The application is opposed by the Respondent, challenging the competence of the proceedings before this Court.
2. Prior to filing the present proceedings, the Applicant had moved the subordinate court by an application seeking stay of execution pending the hearing and determination of proceedings for setting aside. The learned trial magistrate declined to certify the application as urgent and did not grant the ex parte interim orders sought. Instead, the application was directed to be served upon the Respondent and fixed for inter partes consideration.
3. The Applicant thereafter filed a Memorandum of Appeal and the present Notice of Motion before this Court. The Respondent contended that the Applicant’s Notice of Motion, supporting affidavit, and annexures before this Court are identical in every material respect to the application filed and currently pending in the lower court. Relying on Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd (1969) E.A 697 and Rebecca Kerubo Tianta & Peter Njogu v Parklane Construction Company Limited (High Court Misc. Civil App. E387 of 2020) , the Respondent argued that pursuing duplicate applications before two courts offends Section 6 of the Civil Procedure Act and constitutes an abuse of the court process.
4. The Applicant, on the other hand, maintains that this Court is vested with appellate jurisdiction over decisions of subordinate courts and that the existence of proceedings before the subordinate court does not deprive this Court of jurisdiction to entertain an appeal. It is also submitted that section 6 of the Civil Procedure Act, properly understood, does not warrant striking out the proceedings before this Court.
5. I have considered the Notice of Motion, the Preliminary Objection, the rival submissions and the applicable law. In my view, the central question is not, in the first instance, whether the application before the subordinate court renders the present proceedings sub judice . The anterior question is whether there is, in law, a competent appeal upon which this Court can exercise the jurisdiction conferred by Order 42 Rule 6.
6. The right of appeal from interlocutory orders in civil proceedings is principally regulated by section 75 of the Civil Procedure Act, read together with Order 43 of the Civil Procedure Rules.
7. Section 75(1) of the Civil Procedure Act provides, in material part:
“An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted…”
8. It is my considered view that some orders are appealable as of right. In respect of an order falling outside the categories specified in section 75(1)(a)–(g), or otherwise not made appealable as of right by the Rules under section 75(1)(h), an appeal may only be brought upon leave.
9. Order 43 Rule 1(1) of the Civil Procedure Rules identifies the orders from which an appeal lies as of right. Order 43 Rule 1(2) then provides:
“An appeal shall lie with the leave of the Court from any other order made under these Rules.”
10. Order 43 Rule 1(3) further provides the procedure for obtaining such leave, including an application to the court making the order, either orally at the time the order is made or within fourteen days from the date of the order.
11. The impugned decision in the present matter was not a determination of the Applicant's substantive application for stay. The learned trial magistrate declined to certify the application as urgent, declined to grant the ex parte interim orders sought and directed that the application be served upon the Respondent for inter partes consideration.
12. Such a direction has not been shown to fall within the orders enumerated in section 75(1)(a)–(g), nor has the Applicant demonstrated that a direction declining to certify an application as urgent and directing service for inter partes hearing is one of the orders from which an appeal lies as of right under Order 43 Rule 1(1).
13. It follows that leave to appeal was required before an appeal could properly be instituted against that particular decision. The material before the Court does not demonstrate that the Applicant obtained such leave. The Applicant proceeded to file a Memorandum of Appeal without first obtaining the leave which section 75 of the Civil Procedure Act required as a condition precedent to the institution of the appeal.
14. The mere filing of a document styled a “Memorandum of Appeal” does not, by itself, cure the absence of a statutory precondition to the right of appeal. Where leave is required before an appeal can be instituted, leave must precede the competent invocation of the appellate jurisdiction of the Court.
15. The Applicant's general proposition that this Court possesses appellate jurisdiction over subordinate courts is not in dispute. However, appellate jurisdiction is exercised within the statutory framework governing the right of appeal. The existence of jurisdiction does not dispense with a condition which the law has imposed upon the exercise of that jurisdiction.
16. It is this Court's view that the consequence of the failure to obtain leave goes to the foundation of the purported appeal. There being no leave, there is no properly instituted appeal before this Court upon which the Applicant can predicate the present application for stay pending appeal.
17. This view is reinforced by Order 42 Rule 6(1) of the Civil Procedure Rules. The jurisdiction under that provision is jurisdiction to grant stay of execution pending appeal . This presupposes the existence of a properly instituted appeal.
18. This court is of the view that an application for stay pending appeal derives its character and legal foundation from the appeal which it seeks to protect. The same principle is apparent from Order 42 Rule 6(6), which provides:
“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
19. In the context of the High Court's power to grant a temporary injunction in the exercise of its appellate jurisdiction, the procedure for instituting the appeal must first have been complied with.
20. The reasoning is equally applicable to an application under Order 42 Rule 6(1). Before the Court can consider whether substantial loss has been demonstrated, whether the application has been made without unreasonable delay, or whether security should be furnished, there must first be a competent appeal pending before the Court.
21. The Court of Appeal, in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR , while considering the relationship between the right of appeal and an application for stay, approved the reasoning in Rosalindi Wanjiku Macharia v James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased)) [2017] eKLR , to the effect that the filing of an appeal is a condition precedent to the exercise of the jurisdiction under Order 42 Rule 6(1).
22. Similarly, in Equity Bank v Westlink MBO Limited [2013] eKLR , the Court of Appeal considered the requirement of an appeal or notice of intended appeal in the context of an application for stay and underscored the necessity of a proper procedural foundation before the court can exercise the relevant jurisdiction. The same principle is reflected in Balozi Housing Co-operative Society Limited v Captain Francis E. K. Hinga [2012] eKLR .
23. The Applicant did not obtain leave to appeal. It follows that the Memorandum of Appeal filed thereafter did not constitute a properly instituted appeal capable of sustaining an application for stay pending appeal under Order 42 Rule 6. The Court would therefore be acting without a proper appellate foundation were it to proceed to determine the merits of the application for stay. To do so would be to consider an application for stay pending an appeal which, in law, has not been competently brought before the Court.
24. This finding is dispositive of the Notice of Motion. It is therefore unnecessary for the Court to proceed to consider the ordinary principles governing stay under Order 42 Rule 6, including substantial loss, security and the question of delay. Those considerations arise only after the threshold requirement of a competent appeal has been satisfied.
25. In view of the foregoing finding, it is unnecessary to determine the Preliminary Objection on the basis of section 6 of the Civil Procedure Act. Nevertheless, since the issue was fully argued, I consider it appropriate to address it.
26. Section 6 of the Civil Procedure Act provides:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
27. The material before the Court shows that, before filing the present application, the Applicant had already placed before the subordinate court an application seeking substantially the same interim relief, namely stay of execution pending the determination of the proceedings before that court. That application had not been determined when the Applicant approached this Court.
28. The Applicant argues that the present proceedings are appellate in character and that this fact takes them outside section 6. That submission, however, does not answer the anterior difficulty identified above. An appellate court can only exercise appellate jurisdiction in accordance with the law regulating the right and procedure of appeal.
29. More importantly, however, once the Court has found that leave was required but was not obtained, the question whether the subsequent application is also barred by section 6 becomes secondary.
30. I therefore find that the failure to obtain leave under section 75 of the Civil Procedure Act is sufficient to dispose of the application. I make no further determination on the merits of the application for stay under Order 42 Rule 6.
31. In the circumstances, the Applicant's application fails. I accordingly make the following orders:
i. The Appellant/Applicant's Notice of Motion dated 7th September 2026 is accordingly struck out .
ii. The Respondent shall have costs of the Application.
DATED, SIGNED AND DELIVERED AT MERU THIS 17 th DAY OF SEPTEMBER 2026.
2. Prior to filing the present proceedings, the Applicant had moved the subordinate court by an application seeking stay of execution pending the hearing and determination of proceedings for setting aside. The learned trial magistrate declined to certify the application as urgent and did not grant the ex parte interim orders sought. Instead, the application was directed to be served upon the Respondent and fixed for inter partes consideration.
3. The Applicant thereafter filed a Memorandum of Appeal and the present Notice of Motion before this Court. The Respondent contended that the Applicant’s Notice of Motion, supporting affidavit, and annexures before this Court are identical in every material respect to the application filed and currently pending in the lower court. Relying on Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd (1969) E.A 697 and Rebecca Kerubo Tianta & Peter Njogu v Parklane Construction Company Limited (High Court Misc. Civil App. E387 of 2020) , the Respondent argued that pursuing duplicate applications before two courts offends Section 6 of the Civil Procedure Act and constitutes an abuse of the court process.
4. The Applicant, on the other hand, maintains that this Court is vested with appellate jurisdiction over decisions of subordinate courts and that the existence of proceedings before the subordinate court does not deprive this Court of jurisdiction to entertain an appeal. It is also submitted that section 6 of the Civil Procedure Act, properly understood, does not warrant striking out the proceedings before this Court.
5. I have considered the Notice of Motion, the Preliminary Objection, the rival submissions and the applicable law. In my view, the central question is not, in the first instance, whether the application before the subordinate court renders the present proceedings sub judice . The anterior question is whether there is, in law, a competent appeal upon which this Court can exercise the jurisdiction conferred by Order 42 Rule 6.
6. The right of appeal from interlocutory orders in civil proceedings is principally regulated by section 75 of the Civil Procedure Act, read together with Order 43 of the Civil Procedure Rules.
7. Section 75(1) of the Civil Procedure Act provides, in material part:
“An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted…”
8. It is my considered view that some orders are appealable as of right. In respect of an order falling outside the categories specified in section 75(1)(a)–(g), or otherwise not made appealable as of right by the Rules under section 75(1)(h), an appeal may only be brought upon leave.
9. Order 43 Rule 1(1) of the Civil Procedure Rules identifies the orders from which an appeal lies as of right. Order 43 Rule 1(2) then provides:
“An appeal shall lie with the leave of the Court from any other order made under these Rules.”
10. Order 43 Rule 1(3) further provides the procedure for obtaining such leave, including an application to the court making the order, either orally at the time the order is made or within fourteen days from the date of the order.
11. The impugned decision in the present matter was not a determination of the Applicant's substantive application for stay. The learned trial magistrate declined to certify the application as urgent, declined to grant the ex parte interim orders sought and directed that the application be served upon the Respondent for inter partes consideration.
12. Such a direction has not been shown to fall within the orders enumerated in section 75(1)(a)–(g), nor has the Applicant demonstrated that a direction declining to certify an application as urgent and directing service for inter partes hearing is one of the orders from which an appeal lies as of right under Order 43 Rule 1(1).
13. It follows that leave to appeal was required before an appeal could properly be instituted against that particular decision. The material before the Court does not demonstrate that the Applicant obtained such leave. The Applicant proceeded to file a Memorandum of Appeal without first obtaining the leave which section 75 of the Civil Procedure Act required as a condition precedent to the institution of the appeal.
14. The mere filing of a document styled a “Memorandum of Appeal” does not, by itself, cure the absence of a statutory precondition to the right of appeal. Where leave is required before an appeal can be instituted, leave must precede the competent invocation of the appellate jurisdiction of the Court.
15. The Applicant's general proposition that this Court possesses appellate jurisdiction over subordinate courts is not in dispute. However, appellate jurisdiction is exercised within the statutory framework governing the right of appeal. The existence of jurisdiction does not dispense with a condition which the law has imposed upon the exercise of that jurisdiction.
16. It is this Court's view that the consequence of the failure to obtain leave goes to the foundation of the purported appeal. There being no leave, there is no properly instituted appeal before this Court upon which the Applicant can predicate the present application for stay pending appeal.
17. This view is reinforced by Order 42 Rule 6(1) of the Civil Procedure Rules. The jurisdiction under that provision is jurisdiction to grant stay of execution pending appeal . This presupposes the existence of a properly instituted appeal.
18. This court is of the view that an application for stay pending appeal derives its character and legal foundation from the appeal which it seeks to protect. The same principle is apparent from Order 42 Rule 6(6), which provides:
“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
19. In the context of the High Court's power to grant a temporary injunction in the exercise of its appellate jurisdiction, the procedure for instituting the appeal must first have been complied with.
20. The reasoning is equally applicable to an application under Order 42 Rule 6(1). Before the Court can consider whether substantial loss has been demonstrated, whether the application has been made without unreasonable delay, or whether security should be furnished, there must first be a competent appeal pending before the Court.
21. The Court of Appeal, in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR , while considering the relationship between the right of appeal and an application for stay, approved the reasoning in Rosalindi Wanjiku Macharia v James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased)) [2017] eKLR , to the effect that the filing of an appeal is a condition precedent to the exercise of the jurisdiction under Order 42 Rule 6(1).
22. Similarly, in Equity Bank v Westlink MBO Limited [2013] eKLR , the Court of Appeal considered the requirement of an appeal or notice of intended appeal in the context of an application for stay and underscored the necessity of a proper procedural foundation before the court can exercise the relevant jurisdiction. The same principle is reflected in Balozi Housing Co-operative Society Limited v Captain Francis E. K. Hinga [2012] eKLR .
23. The Applicant did not obtain leave to appeal. It follows that the Memorandum of Appeal filed thereafter did not constitute a properly instituted appeal capable of sustaining an application for stay pending appeal under Order 42 Rule 6. The Court would therefore be acting without a proper appellate foundation were it to proceed to determine the merits of the application for stay. To do so would be to consider an application for stay pending an appeal which, in law, has not been competently brought before the Court.
24. This finding is dispositive of the Notice of Motion. It is therefore unnecessary for the Court to proceed to consider the ordinary principles governing stay under Order 42 Rule 6, including substantial loss, security and the question of delay. Those considerations arise only after the threshold requirement of a competent appeal has been satisfied.
25. In view of the foregoing finding, it is unnecessary to determine the Preliminary Objection on the basis of section 6 of the Civil Procedure Act. Nevertheless, since the issue was fully argued, I consider it appropriate to address it.
26. Section 6 of the Civil Procedure Act provides:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
27. The material before the Court shows that, before filing the present application, the Applicant had already placed before the subordinate court an application seeking substantially the same interim relief, namely stay of execution pending the determination of the proceedings before that court. That application had not been determined when the Applicant approached this Court.
28. The Applicant argues that the present proceedings are appellate in character and that this fact takes them outside section 6. That submission, however, does not answer the anterior difficulty identified above. An appellate court can only exercise appellate jurisdiction in accordance with the law regulating the right and procedure of appeal.
29. More importantly, however, once the Court has found that leave was required but was not obtained, the question whether the subsequent application is also barred by section 6 becomes secondary.
30. I therefore find that the failure to obtain leave under section 75 of the Civil Procedure Act is sufficient to dispose of the application. I make no further determination on the merits of the application for stay under Order 42 Rule 6.
31. In the circumstances, the Applicant's application fails. I accordingly make the following orders:
i. The Appellant/Applicant's Notice of Motion dated 7th September 2026 is accordingly struck out .
ii. The Respondent shall have costs of the Application.
DATED, SIGNED AND DELIVERED AT MERU THIS 17 th DAY OF SEPTEMBER 2026.