https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3019

Atati (Suing as the personal representative of the Estate of James Atati Getabu - Deceased) v Omao (Sued as the legal representative and administrator of the Estate of Jeremiah Omao Getabu - Deceased) (Land Case Appeal E004 of 2026) [2026] KEELC 3019 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3019 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Land Case Appeal E004 of 2026 DO Ohungo, J May 20, 2026 Between Kelvin Ogeto Atati (Suing As The Personal Representative Of The Estate Of James Atati Getabu - Deceased) Appellant and Bethseba Bogiti Omao (Sued as the legal representative and administrator of the Estate of Jeremiah Omao Getabu - Deceased) Respondent (Being an appeal from the ruling and order of the Chief Magistrate’s Court at Nyamira (B Ondego, Chief Magistrate) delivered on 12th March 2026 in Nyamira MCELC No. E008 of 2022) Ruling 1.The Appellant filed this appeal on 11th April 2026, through Memorandum of Appeal dated 15th March 2026. Alongside the appeal, the Appellant filed Notice of Motion dated 9th April 2026, which is the subject of this ruling. 2.The following orders are sought in the application:1.That this application be certified urgent and service thereof be dispensed with in the 1st instance.2.That pending the hearing and determination of this application, this Honourable Court be pleased to issue orders staying the contempt proceedings in MCELC/EOO8/2022 slated for the 28th day of April 2026.3.That pending the hearing and determination of this appeal, this Honourable Court be pleased to issue orders staying the contempt proceedings in MCELC/EOO8/2022 slated for the 28th day of April 2026.4.That this Honourable Court be pleased to render such further orders as it deems just and fit in the circumstances.5.That the costs of this Application be provided for. 3.When the application came up on 21st April 2026 for inter parte hearing, upon hearing counsels for both parties, I granted interim orders in terms of prayer number 2 of the application. 4.The Application is premised on the grounds listed on its face and is supported by an affidavit sworn by the Appellant. He deposed that judgment was delivered in the Subordinate Court on 1st November 2022 and that the Subordinate Court found him in contempt on 4th September 2025. That he then filed applications dated 17th September 2025, 17th October 2025 and 26th October 2025 seeking inter alia to set aside the judgment, leave to appeal and leave to cross examine a process server and that the Subordinate Court dismissed the applications vide ruling delivered on 12th March 2026 after which it scheduled the matter for mitigation on 28th April 2026. He added that unless this Court grants the orders sought, there was imminent risk that the matter would procced and he would be found in contempt and sentenced. 5.The Respondent opposed the application through a replying affidavit which she swore on 20th April 2026. She deposed that she was not a party in the suit or proceedings in respect of which this appeal had been filed and that the appeal is incompetent for want of proper parties. That the Appellant was granted leave to appeal against the ruling dated 12th March 2026 within fourteen days but failed to file the appeal within the said period, instead filing the Memorandum of Appeal on 9th April 2026, which was outside the time granted. 6.The Respondent also stated that the present application, though framed as one for stay pending appeal, is in substance an application for stay of contempt proceedings, which is a discretionary and exceptional remedy granted sparingly and only upon demonstration of sufficient cause and in the absence of a competent appeal, the present application is therefore devoid of any legal foundation. 7.The Respondent further stated that to stay the contempt proceedings in the circumstances of this case would not only prejudice her but would also undermine the authority and dignity of the Court and erode public confidence in the administration of justice. 8.The Appellant filed a supplementary affidavit which he swore on 22nd April 2026 and deposed that the Respondent was the legal representative of the estate of Jeremiah Omao Getabu and that she was erroneously indicated as a party in this appeal because Lumumba Omao who was the administrators of the estate had ceased being administrator. He added that the error was minor and could be corrected through amendment and that since the ruling appealed against was delivered on 12th March 2026, this appeal was timeously filed. 9.The application was canvassed through written submissions. The Appellant filed submissions dated 22nd April 2026 while the Respondent filed submissions dated 2nd May 2026. 10.I have considered the application, the affidavits and the submissions. The sole issue for determination is whether stay of proceedings should be granted. 11.Stay of proceedings is a serious matter, since it brings to a halt, albeit temporarily, the smooth flow of the process of dispensation of justice. Consequently, it is a relief that must be granted sparingly and only in exceptional circumstances. Even more circumspection is required before stay of proceedings pending determination of an appeal is granted since any delay in the hearing and determination of the appeal will only exacerbate the situation in so far as early determination of the matter appealed from is concerned. 12.The decision on whether to grant stay of proceedings is discretionary but must be exercised judiciously and on sound principles. The main consideration is whether it is in the interest of justice to grant such an order. See Re Global Tours & Travel Ltd HCWC No.43 of 2000 (Unreported). 13.The Court of Appeal stated in Lucy Njoki Waithaka v Tribunal Appointed to Investigate the Conduct of the Honourable Lady Justice Lucy Njoki Waithaka & Judicial Service Commission; Kenya Magistrates & Judges Association (Interested Party) [2020] eKLR that:We note that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation. (See: Francis N. Githiari v Njama Limited [2006] eKLR). It impinges on the right of access to justice, right to be heard without delay and the right to a fair trial. While addressing the issue of stay of proceedings in the persuasive case of Global Tours & Travels Limited (supra), Ringera, J as he then was stated thus: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 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.In Halsbury’s Laws of England, 4th Edn. Vo. 37 page 330 and 332, stay of proceedings is discussed as follows: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 not 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. 15.In the present application, the Appellant is seeking stay of proceedings pending the hearing and determination of this appeal. In that regard, I note that the Respondent has contended that she has been wrongly joined in this appeal since she was not a party in the matter before the Subordinate Court. The Appellant has conceded that indeed the Respondent was not a party. By extension, it follows that the Appellant cannot validly litigate in this appeal in the absence of the proper Respondent. A defective or no appeal is hardly a foundation upon which to ground stay orders, be they stay of execution or proceedings. The Court cannot grant such orders in the hope that the Appellant will correct the defect at some unknown point in the future. 16.The Appellant is specifically seeking stay of the contempt proceedings which were scheduled for 28th April 2026. As drawn, the stay does not extend beyond proceedings of that date which is now past. As has been severally held by the Courts, parties are bound by their pleadings. The Court too is in a sense bound by the parties’ pleadings since pleadings circumscribe the issues for determination and reliefs sought. See Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR. 17.Given the apparent shortcomings in the appeal and the prayer for stay of proceedings, I am not persuaded that it is in the interest of justice to stay proceedings in the circumstances. Granting such an order in the circumstances would unjustifiably stifle the course of justice, and in an indefinite manner. 18.In view of the foregoing discourse, I find no merit in Notice of Motion dated 9th April 2026. I dismiss it with costs to the Respondent. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 20TH DAY OF MAY 2026.D. O. OHUNGOJUDGEDelivered in the presence of:Mr Otieno holding brief for Mr Okatch for the AppellantMr Marita for the RespondentCourt Assistant: Edinah N