https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3364

Koin v Mathenge t/a Mathenge Gitonga & Co Advocates & 2 others (Environment and Land Case E074 of 2022) [2026] KEELC 3364 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3364 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E074 of 2022 MN Kullow, J June 4, 2026 Between Esther Aita Koin Plaintiff and Peter Githonga Mathenge t/a Mathenge Gitonga & Co Advocates Defendant and Cooperative Bank Of Kenya 1st Interested Party Charles Mwangi Kingori 2nd Interested Party Ruling Introduction 1.Vide the notice of motion application dated 23rd June 2025 the Applicant seek the following orders:a.Spentb.That pending the hearing and determination of HCCOMM E183 OF 2023 there be an order to stay of all proceedings in this matterc.Costs of the application 2.The application was premised on grounds as in the supporting affidavit of Mathenge Gitonga where he deponed that there was an active matter in the high court being HCCOMM E183 of 2023 over the suit property LR 209/1221/51 five-star estate Phase 1 house No 100 South C which matter sought to determine whether the 1st interested party’s realization of the security on the property was regular. He deponed that the outcome of the said suit will enable the defendant perform the obligations under the agreement that is subject of this suit and hence solve the dispute herein hence need to stay this matter Reply 3.The 1st interested party opposed the application by filing a replying affidavit sworn on the 15th October 2025 by one Gerald Maina. He deponed that this application was a delaying tactic as the two suits were on totally different issues though it touched don the same subject maters. The commercial matter was on the validity of realization of security on the suit property by them while on this matter the plaintiff who was not a party in the commercial matter was suing for breach of contract and seeking for damages for breachIt was further deponed that the 1st interested party was not privy to the agreement as between the plaintiff and defendant and the suit seeking for breach of damages should not in any way hinder the determination on the validity of the charge in HCCOMM E183 of 2023. 4.The 2nd interested party also filed a replying affidavit dated 5th September 2025.He deponed that the plaintiff’s claim was for compensation from the defendant and she was not interested in the suit property and as such the applicant cannot argue that the determination of the matter in the High court will enable him dispense his obligations in the agreement, citing the application as frivolousThe application was canvassed by way of written submissions with the plaintiff. 1st interested party being the complying parties as at the time of drafting this ruling 1st interested party’s Submissions 5.The 1st interested party submitted on one sole issue for determination being whether the applicant had established sufficient cause to warrant stsy of proceedings. Counsel submitted that the applicant had not established enough reasons to warrant stay of proceedings orders being that he had not established the connection as between the two suits the only ground being that should the High court matter succeeded then there will be no need for this instant matter to proceed. He submitted that the outcome of the commercial matter will not in any way affect the performance of the obligations of the applicant in this instant suitCounsel argued that stay orders ought to be granted when there is sufficient cause relying on the case of Kenya Wildlife service v Obadiah Njuki Akwalu & Another (2019) KEHC 1059 KLRCounsel also submitted that the applicant was an indolent party having brought the application 2 years after it had been filed and had he wanted the matter stayed the application should have been made on the onset. That the action of the applicant not complying with the pre trial directions all pointed out to delaying tactics 6.The plaintiff filed submissions dated 20th April 2025 relying solely on the submissions and replying affidavit filed by the 1st interested party. She argued that the two suits were totally independent and capable of being determined separately and as such the application was an act seeking to delay the uncontested indebtedness to the plaintiff and 1st interested party. Analysis and Determination 7.I have considered the application, the reply as well as rival submissions. In my considered view, the issue that arises for determination isWhether this court ought to stay of proceedings in this matter pending the determination in HCCOMM E183 of 2023It is not in doubt that this Court has powers to stay proceedings under its inherent jurisdiction reserved in section 3A of the Civil Procedure Act. Stay of proceedings is a grave judicial discretion that interferes with a party’s right to be heard and is to be granted only in the clearest of cases. The applicable principles are well-settled.In Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 where it was stated that:The sole question is whether it is in the interest of justice to order a stay of proceedings, considering factors such as the prima facie merits of the intended appeal, the interests of the applicant, the prejudice to the respondent, and the expeditious disposal of cases.”In David Morton Silverstein v Atsango Chesoni Civil Application No. Nai. 189 of 2001 [2002] 1 KLR 867; [2002] 1 EA 296 the Court of Appeal citing Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & Another Civil Application No NAI 50 of 2001 held that it is not the law that a stay of proceedings cannot be granted but that each case depends on its own facts. In Niazons (Kenya) Ltd. v China Road & Bridge Corporation (Kenya) Ltd. Nairobi (Milimani) HCCC No. 126 of 1999 it was held that: “Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay…should be granted.” 8.In the present case, the reason advanced by the applicant is that the success of the matter in the high court will enable him effectively perform his obligations under the agreement subject of this suit .The question then is what if the matter in the high court does not succeed then it will mean the court would have put on hold the determination of this matter for no sufficient cause at the detriment of the plaintiff. 9.Furthermore, I find the arguments by the 1st interested party and plaintiff to be valid that the applicant’s non-performance of his obligations in the agreement subject of this suit property is a totally different issue as the issue in contention in the High court matter. The proceedings in this matter will not in any way interfere with the proceeding in the high court matter. I hold the view that the applicant’s arguments have not given any sufficient reason to warrant stay of proceedings but will merely be delaying the determination of the plaintiff’s case in this matter. 10.The court is called upon to way the pros and cons before granting stay of proceedings orders and in this case the plaintiff will be highly prejudiced. This was stated aptly in the case of Re Global Tours & Travel Ltd Nairobi HCCC No. 43 of 2000 where the court spelt out the applicable considerations in determining an application for stay of proceedings as follows: “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 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.” 11.In this regard, this court is guided by the principles stated above that stay of proceedings is indeed a grave matter that should only be accorded to deserving matters as it interferes with a party's right to expeditious resolution of a case. This court finds that the Applicant has not met the threshold for granting orders of stay of proceedings. The application is a mere delaying tactic which goes against the expeditious, cost effective and proportionate resolution of disputes as provided for in Article 159(2) (b) of the Constitution which stipulates as follows “In exercising judicial authority, the courts and tribunals shall be guided by among others justice shall not be delayed’’That even the principles of equity frown upon delay in justice and submitted on the legal maxim that justice delayed is justice denied. That the continued pendency of the subject matter herein is quite prejudicial to the plaintiff/Respondent as the same has the effect that the matter shall not be expeditiously determined, resulting to the fact that justice shall have been delayed. Final disposition 12.For the foregoing reasons, I make the order that the Application dated 23rd June 2025 lacks merit and is hereby dismissed with costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 4TH DAY OF JUNE 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Sichangi for the PlaintiffMr. Kimani for the 2nd Interested PartyPhilomena W. Court Assistant