https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4754

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. 117 OF 2016** **JEREMIAH CHERUIYOT---------------------------PLAINTIFF/APPLICANT** **VERSUS** **MICHAEL BETT SIROR---------------------DEFENDANT/RESPONDENT** **RULING** 1. What is before me for determination is the application dated **5/6/2026** in which the applicant is seeking to stay further proceedings in this suit, pending the hearing and determination of the intended appeal against a ruling delivered by the court on **4/3/2026**. 2. The application is premised on **Articles 25(c),** **48**, **50(1)** and **159** of the Constitution, **Sections 1A, 1B and 3A** of the Civil Procedure Act and **Order** **42 Rule 6 and Order 51** of the Civil Procedure Rules. 3. The grounds upon which the said application is based are set out on its face and supported by an affidavit sworn by the applicant of even date. The applicant avers that the ruling of **4/3/2026** dismissed an application seeking to amend the plaint to include a claim of adverse possession in respect of the suit property. 4. The applicant raises various issues that form the bedrock of the application, mainly that the intended appeal is arguable as it raises substantial constitutional and legal issues to wit: the necessity of a party to fully present its case before the court; principles governing the amendment of pleadings; the overriding objective in civil matters; substantive justice vis a- vis procedural technicalities; and whether the amendment sought to be had introduces a new cause of action. 5. The applicant contends that unless the proceedings are stayed, the suit shall proceed as an incomplete claim. As a result, the applicant avers, that his right to a fair hearing shall be prejudiced, his right to access justice shall be undermined and that the intended appeal shall be rendered nugatory. 6. The applicant further contends that the respondent shall not be prejudiced, and in any case, he shall be compensated by way of costs. 7. The applicant has annexed the notice of appeal, letter requesting the proceedings, and the impugned ruling as **JC-1.** 8. The respondent has opposed the application through a replying affidavit sworn by David Kipchumba Siror dated **16/6/2026.** In the said affidavit, the deponent avers that he is the respondent's guardian *ad litem.* The respondent terms the application an abuse of the court process. The deponent further avers that the suit ought to be heard and determined as it has been pending for over ten years now; and that the respondent stands to suffer prejudice with any further delay since he is suffering from dementia and is of advanced in age. 9. The respondent further contends that the applicant has not met the conditions necessary to warrant the grant of the orders sought and that the application runs contrary to the expeditious administration of justice and disposal of matters. The deponent further accused the applicant of seeking to forestall the hearing and determination of the suit through numerous applications. 10. Through written submissions dated **3/7/2026,** the applicant submits on three issues for determination. On whether he has met the conditions for a stay, the applicant submits that the court's jurisdiction to grant a stay of proceedings is discretionary and should be exercised in the interest of justice. 11. The applicant relies on ***Re Global Tours & Travel Winding Up Case No. 43 of 2000,*** in which the court held that it has a duty to weigh whether it is in the interests of justice to order a stay of proceedings. The applicant further relies on the case of ***Kenya Wildlife Service -vs- James Mutembei [2019] eKLR***, on the proposition that a stay of proceedings is granted under justifiable circumstances. 12. The applicant submits that at this stage, he is not required to prove whether the appeal will succeed or not, but ought to show that it is not frivolous. He also submits that the court should not be the one to drive a party out of the seat of justice on procedural objections. 13. Further, the applicant submits that his prejudice is real and apparent, since if the orders sought are denied, he will proceed with inadequate pleadings. The applicant invited the court to be guided by the case of ***David Morton Silverstein -vs- Atsango Chesoni [2001] KECA 19 (KLR),*** where the court held that courts must consider whether granting or denying a stay of proceedings would render the appeal worthless or cause an inconvenience. 14. Further, the applicant submits that although matters should be heard and disposed of expeditiously, the same should not be at the expense of a fair trial; that the rights must be balanced and that the respondent's interests, despite being elderly, shall be protected through his guardian *ad* *litem*. 15. On his part, the respondent filed written submissions dated **26/6/2026** in which he submits through counsel that the parties have had several disputes over the sale of the subject land. 16. Regarding the application before court, the respondent submits that the applicant has a duty to demonstrate that he filed the same timeously; that the appeal would be rendered nugatory and that no prejudice would be occasioned to the respondent if the proceedings are stayed. 17. The respondent further submits that the applicant has not offered a reason for the three-month delay in filing this application. The respondent terms the delay as inordinate and unreasonable. The respondent relies on the cases of ***Kenya Shell Limited -vs- Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR)***, ***David Morton Silverstein*** *(supra)* and ***Reliance Bank Ltd -vs- Norlake Investments Ltd [2002] 1 EA 227.*** 18. I have carefully considered the application, the rival affidavits on record as well as the applicable law. I have equally considered the submissions by counsel on record for the parties, for which I am grateful. The law governing stay of proceedings is **Order 42** of the Civil Procedure Rules. The pre-requisite principles on stay of proceedings were considered in ***Kenya Wildlife Service*** *(supra), in* which the court stated that a stay of proceedings should be granted sparingly and only in exceptional circumstances. 19. The parameters to consider on an application for stay of proceedings were also discussed in ***Christopher Ndolo Mutuku & Another -vs- CFC Stanbic Bank Ltd [2015] eKLR.*** 20. From the foregoing case law, the distilled principles or considerations are: a). Whether the applicant has a *prima* *facie* arguable appeal or case; b). Whether the application was filed timeously and c). Whether there is sufficient cause to satisfy the court that it is in the interest of justice to grant the orders sought. 21. In *Halsbury’s Law of England 4th Edition, Vol. 37, pages 330 and 332*, a stay of proceedings is termed as a serious, grave, and fundamental interruption of the right that a party has to conduct his litigation towards trial, based on substantive merits of his case, and hence the discretion to stay proceedings should not be imposed unless the proceedings, beyond all reasonable doubt, ought not to be allowed to continue; and therefore should only be sparingly allowed and only where there is evidence that the proceedings are frivolous, vexatious or harassing or are manifestly groundless or disclose no known cause of action. 22. Similarly, the court in [***David Morton Silverstein***](https://kenyalaw.org/akn/ke/judgment/keca/2002/287) *(supra),* held that if there is a pending appeal, an applicant should explain why a stay has not been sought in the higher court since that court is better placed to calibrate its orders. The court further held that there must be a demonstration that the appeal raises a substantial question to be determined or is otherwise arguable; that there must be a demonstration that the appeal will be rendered nugatory; and that there are exceptional circumstances why a stay is warranted as opposed to the hearing of the case being conducted safely and all arising grievances taken up on a single appeal. 23. From the foregoing jurisprudence, it is undoubtedly clear that an application for a stay of proceedings ought to demonstrate sufficient cause to warrant interference with an expedited disposal of suits, which runs against **Sections 1A** and **1B** of the Civil Procedure Act as well as **Articles 50** and **159** of the Constitution. 24. Looking at the totality of the circumstances of this matter, particularly its age, I am not persuaded that this is a fit case in which to make an order for stay of proceedings as I have been invited to do by the applicant, which invitation I respectfully decline. 25. I determine instead that the interests of justice demand that this matter should proceed to an expedited hearing of the main suit for a quick disposal thereof. It is so ordered. 26. The corollary to this determination is that the application dated **5/6/2026** is dismissed. Costs shall abide the outcome of the main suit. 27. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Mr. Wangila for the applicant Mr. Mwangi for the respondent  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**