https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1035

Psinen v Seset & 2 others (Civil Application E021 of 2026) [2026] KECA 1035 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1035 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E021 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA May 29, 2026 Between Augustine Kotoruk Psinen Applicant and Joseph Kiror Seset 1st Respondent Beatrice Chelangat Tukei 2nd Respondent Lavin Cherotich (Suing as the legal representative of the estate of the late Chebor Kirop Kalikwon - Deceased) 3rd Respondent (An application for stay of proceedings from the ruling and order of the Environment and Land Court at Kitale (C.K. Nzili, J.) delivered on 25th February 2026) Ruling 1.In his Notice of Motion dated 4th March 2026, the applicant has invoked the provisions sections 3A and 3B of the Appellate Jurisdiction Act, as well as rule 5 (2)(b) of the Court of Appeal Rules 2022. He seeks a stay of proceedings in Kitale ELCCC No. E025 of 2024 pending the hearing and determination of an intended appeal. He also seeks status quo orders over land parcel no. LR No. West Pokot/Keringet “A”/429. 2.The application is supported by the grounds on the body of the Motion, as well as the applicant’s supporting affidavit, sworn on 4th March 2026. The applicant elucidated that on advice of his counsel, he filed an application dated 1st December 2025, seeking leave to amend his defence and counterclaim; all the while conceding that the said application was made after the close of the respondents’ case. Come 25th February 2026, the learned judge dismissed the application, galvanizing the applicant to file his notice of appeal dated 1st March 2026. 3.The applicant urged this Court to allow his application for the stay of proceedings as his appeal was arguable. He argued that draft memorandum of appeal, dated 1st March 2026, raised 4 grounds disputing the findings of the learned judge and urged us to note that the grounds raised weighty issues. On the nugatory aspect, he was apprehensive that if stay is not granted, he will be compelled to proceed with his case and thus the appeal will be rendered nugatory. Finally, he argued that no prejudice would be occasioned on the respondents if the orders of stay are granted. 4.The application was opposed. The 1st respondent filed a replying affidavit, sworn on 7th August 2026. He deposed that the application failed to meet the threshold set out in rule 5 (2) (b) of the Court of Appeal Rules. On the arguability aspect, he contended that the appeal did not disclose arguable grounds maintaining that the trial judge properly exercised her discretion. Turning to the nugatory aspect, the 1st respondent was of the view that none had been demonstrated as the applicant was at liberty to proceed with his defence at trial. That in any event, if dissatisfied, his recourse lay in filing an appeal before this Court. Finally, the 1st respondent deposed that he stood to suffer prejudice if the orders sought are granted as one of his crucial witnesses has since passed on. He prayed that the application be dismissed with costs. 5.When the application was heard on 6th May 2026, learned counsel Miss Isiaho appeared for the applicant while learned counsel Mr. Magal was present for the respondents. Both counsel relied on their written submissions that were briefly orally highlighted in canvassing the application. 6.The applicant filed written submissions dated 9th April 2025 (sic). Counsel submitted that based on the grounds set out in the application, together with the supporting affidavit, the applicant demonstrated that the appeal was arguable and would be rendered nugatory if stay is not granted. Mr. Magal, on his part, filed written submissions dated 13th April 2026. He urged this Court that based on the reasons set out in the 1st respondent’s replying affidavit, the application was for dismissal. 7.We have considered the application, the affidavits as well as the annexures thereto. We have also considered the parties’ written submissions and analyzed the law. The applicant seeks a stay of proceedings in Kitale ELCCC No. E025 of 2024 as well as status quo orders, to preserve land parcel namely LR No. West Pokot/Keringet “A”/429. To succeed, an applicant must satisfy the following twin conjunctive elements under rule 5(2)(b) of this Court’s Rules: firstly, the appeal is arguable; and secondly, the appeal would be rendered nugatory if stay is not granted. 8.On the arguability of the appeal, it is now settled that an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. [See Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] KECA 378 (KLR)]. The applicant has annexed a draft memorandum of appeal that raised four grounds disputing the findings of the learned judge. At this stage we are only required to be satisfied that the grounds are arguable and that even one ground that must not necessarily finally succeeded is enough. We have looked at the grounds and note that the applicant is not satisfied with the manner that the learned judge exercised his discretion. We think that is arguable but we will leave the issues for determination by the bench that will hear and determine the appeal. 9.Turning to the nugatory aspect, this Court in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others (supra) held that whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved. In defining the term nugatory, it does not only mean worthless, futile or invalid. It also means trifling. [See Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227 at page 232]. 10.The applicant lamented that if stay is not granted, he will be compelled to proceed with his case at trial. However, the applicant in our view stands to suffer no prejudice if the suit is allowed to proceed. It is trite that stay of proceedings is a power that should be exercised sparingly. Upon considering the arguments that were advanced by the parties we are not satisfied that the appeal will be rendered nugatory. In the circumstances of this case and the ligation history, it is more hygienic for the suit to follow its cause and thereafter , any party aggrieved by that decision will be at liberty to lodge an appeal. 11.In view of the foregoing, it is our finding that the applicant has not set out clear grounds why we should stay proceedings at the trial court; an order, we must add that is so drastic in its nature and should only be granted in clearest of cases. The present one does not meet that threshold. Accordingly, we do not hesitate to find the application devoid of merit. It is dismissed with costs to the respondents.It is so ordered. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY, 2026.M. GACHOKA C. Arb, FCIArb..............................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALL. NDOLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR