1. The Applicant, who is the Defendant in Mombasa MCCC No. E1349 of 2022 (Kassam Hauliers Limited v Takaful Insurance Limited) filed an application before the trial court seeking to have the Plaint dated 28th February 2022 struck out for misjoinder of causes of action. The suit was said to be fatal and incurable as it combined 18 suits arising from 18 different insurance contracts.
2. The trial magistrate, J.B. Kalo, Chief Magistrate, in the ruling dated 5th September, 2025, dismissed the said application and set down the matter for pretrial.
3. Dissatisfied with the said ruling, The Defendant/Appellant filed this appeal, and the Notice of Motion dated 3rd October, 2025, which is brought under Article 163 (c) of the Constitution and Order 42 Rule 6 of the Civil Procedure Rules. The Appellant/ Applicant seeks to have stay of the proceedings herein pending the hearing and determination of the appeal against, the above mentioned ruling.
4. The Applicant though its Legal Officer, Dolphine Moindi, filed a Supporting Affidavit where it was averred that the suit as framed was impossible to defend, as the Respondent has combined incompatible causes of action with no commonality of evidence. The pleadings, the impugned ruling and the Memorandum of Appeal in support of the application were annexed. It was prayed that the application be allowed.
5. In response to the application, the Plaintiff/ Respondent filed the Replying Affidavit dated 6th January, 2026 sworn by the Respondent’s Head of Insurance and Claims Department, Stephen Mackenzie. It was stated that the application was meant to delay the determination in the matter as the issues raise were determined by the trial court.
6. It is further stated that the Respondent would suffer irreparable loss if stay orders are granted as it would infringe on the Respondent’s constitutional right to expeditious dispensation of justice. This application can be prosecuted without interfering with the continuation of the proceedings. The application is said to be an abuse of power and should be dismissed with costs.
7. Parties were directed to file written submissions. Both parties were in compliance of the same by filing their rival submissions, which I have considered.
Analysis
8. I have perused through the application, the responses and the rival submissions filed. The issues before me are;
a. Whether proceedings should be stayed pending hearing and determination of the appeal
b. Who bears the costs.
9. On stay of proceedings, the exercise of that discretion should be premised on conscientious and judicious decision based on defined principles which were expounded by Ringera J in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000:-
“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 so, 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.”
10. Further, in the case of Kenya Wildlife Service-vs-James Mutembei [2019] eKLR, it was held that:
“ ...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..."
11. The stay of proceedings is provided under Order 42 Rule 6(1) of the Civil Procedure Rules, it provides as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”
12. In determining this Application, the main objective is to achieve justice for both parties. In Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal articulated that:
“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.
For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” (emphasis added).
13. In the case of Ndura & ano.v Kenya Power and Lighting Company Limited [2025] eKLR, the court stated as follows;
“To stay or not stay proceedings is a discretion on the part of the court to be exercised judicially and on sound grounds. It is a serious, grave and fundamental interruption in the right of parties to be heard expeditiously. In William Odhiambo Ramogi & Others v A.G. & Other, Muslim for Human Rights and Others (IP) [2020] eKLR, the court RE Global Tours & Travel Ltd (Supra) and Kenya Shell Ltd v Kibiru & Another [1986] eKLR and David Morton Silverstein v Atsango Chesoni (Supra) that the principles to consider are:
(1)If there is a pending appeal in the higher court.
(2)The Applicant should explain why a stay has not been sought in the higher court since the policy is to move to the said court, which is better placed to calibrate its orders.
(3)There must be a demonstration that the appeal raises substantial questions to be determined or is otherwise arguable.
(4)There must be a demonstration of the appeal being rendered nugatory.
(5)Exceptional circumstances must be demonstrated which make the stay of proceedings warranted as opposed to hearing the case concluded safely and all arising grievances taken up on a single appeal.
(6)The Applicant must demonstrate that the application was filed expeditiously and without delay.
14. I have perused through the Plaint dated 28th February, 2022 and specifically paragraphs 6,7 and 8. I have perused through the Plaintiff’s Witness Statement and the Plaintiff’s List of Documents, both dated 28th February 2022 and the Defendant’s Amended Statement of Defence (Under Protest). I have also perused through the Notice of Motion dated 2nd August, 2023 and the ruling of the court dated 5th September, 2025.
15. The Defendant has already filed an appeal against the ruling of the court through the Memorandum of Appeal dated 22nd September, 2025, the issues raised are triable and there was no delay in filing of the appeal and this application. I find that the Applicant has met the threshold of having the orders of stay of proceedings granted.
16. This court must balance the interest of the Defendant/ Applicant in the event the appeal is determined in their favour. On the other hand, the interests of the Plaintiff/ Respondent to prosecute its claim must be considered as it must not be denied the right of access to justice. This appeal shall be fast tracked.
17. On costs, the same follows the event. However, the court retains discretion whether to award the same or not. There being an appeal on record, the costs of this application shall follow the outcome of the appeal.
Determination
18. Following the foregone discourse, the upshot is that the following orders do hereby issue: -
(a) That there be stay of proceedings pending the hearing and determination of this appeal.
(b) Costs to abide the outcome of the appeal.
It is so ordered.
Delivered, dated and signed at Mombasa on this 6th day of August, 2026.
………………….
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of:-
Ms. Kagori Advocate h/b for Mr. Burugu Advocate for the Applicant.
Ms. Mwakizozo Advocate for the Respondent
Ms. Salwa, Court Assistant
2. The trial magistrate, J.B. Kalo, Chief Magistrate, in the ruling dated 5th September, 2025, dismissed the said application and set down the matter for pretrial.
3. Dissatisfied with the said ruling, The Defendant/Appellant filed this appeal, and the Notice of Motion dated 3rd October, 2025, which is brought under Article 163 (c) of the Constitution and Order 42 Rule 6 of the Civil Procedure Rules. The Appellant/ Applicant seeks to have stay of the proceedings herein pending the hearing and determination of the appeal against, the above mentioned ruling.
4. The Applicant though its Legal Officer, Dolphine Moindi, filed a Supporting Affidavit where it was averred that the suit as framed was impossible to defend, as the Respondent has combined incompatible causes of action with no commonality of evidence. The pleadings, the impugned ruling and the Memorandum of Appeal in support of the application were annexed. It was prayed that the application be allowed.
5. In response to the application, the Plaintiff/ Respondent filed the Replying Affidavit dated 6th January, 2026 sworn by the Respondent’s Head of Insurance and Claims Department, Stephen Mackenzie. It was stated that the application was meant to delay the determination in the matter as the issues raise were determined by the trial court.
6. It is further stated that the Respondent would suffer irreparable loss if stay orders are granted as it would infringe on the Respondent’s constitutional right to expeditious dispensation of justice. This application can be prosecuted without interfering with the continuation of the proceedings. The application is said to be an abuse of power and should be dismissed with costs.
7. Parties were directed to file written submissions. Both parties were in compliance of the same by filing their rival submissions, which I have considered.
Analysis
8. I have perused through the application, the responses and the rival submissions filed. The issues before me are;
a. Whether proceedings should be stayed pending hearing and determination of the appeal
b. Who bears the costs.
9. On stay of proceedings, the exercise of that discretion should be premised on conscientious and judicious decision based on defined principles which were expounded by Ringera J in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000:-
“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 so, 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.”
10. Further, in the case of Kenya Wildlife Service-vs-James Mutembei [2019] eKLR, it was held that:
“ ...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..."
11. The stay of proceedings is provided under Order 42 Rule 6(1) of the Civil Procedure Rules, it provides as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”
12. In determining this Application, the main objective is to achieve justice for both parties. In Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal articulated that:
“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.
For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” (emphasis added).
13. In the case of Ndura & ano.v Kenya Power and Lighting Company Limited [2025] eKLR, the court stated as follows;
“To stay or not stay proceedings is a discretion on the part of the court to be exercised judicially and on sound grounds. It is a serious, grave and fundamental interruption in the right of parties to be heard expeditiously. In William Odhiambo Ramogi & Others v A.G. & Other, Muslim for Human Rights and Others (IP) [2020] eKLR, the court RE Global Tours & Travel Ltd (Supra) and Kenya Shell Ltd v Kibiru & Another [1986] eKLR and David Morton Silverstein v Atsango Chesoni (Supra) that the principles to consider are:
(1)If there is a pending appeal in the higher court.
(2)The Applicant should explain why a stay has not been sought in the higher court since the policy is to move to the said court, which is better placed to calibrate its orders.
(3)There must be a demonstration that the appeal raises substantial questions to be determined or is otherwise arguable.
(4)There must be a demonstration of the appeal being rendered nugatory.
(5)Exceptional circumstances must be demonstrated which make the stay of proceedings warranted as opposed to hearing the case concluded safely and all arising grievances taken up on a single appeal.
(6)The Applicant must demonstrate that the application was filed expeditiously and without delay.
14. I have perused through the Plaint dated 28th February, 2022 and specifically paragraphs 6,7 and 8. I have perused through the Plaintiff’s Witness Statement and the Plaintiff’s List of Documents, both dated 28th February 2022 and the Defendant’s Amended Statement of Defence (Under Protest). I have also perused through the Notice of Motion dated 2nd August, 2023 and the ruling of the court dated 5th September, 2025.
15. The Defendant has already filed an appeal against the ruling of the court through the Memorandum of Appeal dated 22nd September, 2025, the issues raised are triable and there was no delay in filing of the appeal and this application. I find that the Applicant has met the threshold of having the orders of stay of proceedings granted.
16. This court must balance the interest of the Defendant/ Applicant in the event the appeal is determined in their favour. On the other hand, the interests of the Plaintiff/ Respondent to prosecute its claim must be considered as it must not be denied the right of access to justice. This appeal shall be fast tracked.
17. On costs, the same follows the event. However, the court retains discretion whether to award the same or not. There being an appeal on record, the costs of this application shall follow the outcome of the appeal.
Determination
18. Following the foregone discourse, the upshot is that the following orders do hereby issue: -
(a) That there be stay of proceedings pending the hearing and determination of this appeal.
(b) Costs to abide the outcome of the appeal.
It is so ordered.
Delivered, dated and signed at Mombasa on this 6th day of August, 2026.
………………….
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of:-
Ms. Kagori Advocate h/b for Mr. Burugu Advocate for the Applicant.
Ms. Mwakizozo Advocate for the Respondent
Ms. Salwa, Court Assistant