https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5081

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E061 OF 2023** **SAGAL INVESTMENT LIMITED…………..……...1ST PLAINTIFF/RESPONDENT** **ABDI HASSAN ABDI ………………....…..…………2ND PLAINTIFF/RESPONDENT** **-VERSUS-** **GULF AFRICAN BANK LIMITED …………………..1ST DEFENDANT/APPLICANT** **AHMED ALI HASSAN……......…………………..2ND DEFENDANT/RESPONDENT** **RULING** 1. Before me is the notice of motion dated 20th February, 2026 filed by the 1st defendant/applicant and it is expressed to be brought under **Article 159(2)** of the **Constitution** and **Sections 1A, 1B and 3A** of the **Civil Procedure Act** seeking the following orders:- 2. ***Spent.*** 3. ***There be a stay of any further proceedings in the matter pending the hearing and determination of the appeal.*** 4. ***The costs of this application be awarded to the applicant.*** 5. The application is premised on the grounds *inter alia* that the 1st defendant/applicant is dissatisfied with the ruling of this court delivered on 19th December, 2025. The application is supported by the affidavit of Lawi Sato sworn on even date. 6. The 1st defendant/applicant deposed that he being dissatisfied with the ruling of this court, they filed a notice of appeal on 19th December, 2025. Further, that the intended appeal raises substantial questions with chances of success. The 1st defendant/applicant deposed that any further proceedings in the matter will substantially prejudice the intended appeal. 7. In response thereto, the plaintiffs/respondents filed their grounds of opposition dated 25th March, 2026 challenging the application on the following grounds:- 8. ***The applicant by filing this application seeking stay of proceedings will amount to great injustice to the respondents.*** 9. ***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.*** 10. ***The applicant has not filed the appeal to warrant stay of proceeding pending hearing and determination of appeal.*** 11. ***The applicant has failed to satisfy the well-settled legal principles governing the grant of stay of proceedings, which is a discretionary and exceptional remedy only granted in clear circumstances.*** 12. ***The orders sought, if granted, will occasion substantial prejudice to the respondent who is entitled to have the matter heard and determined without undue delay, noting that the suit property was sold in the year 2021.*** 13. ***The applicant has not demonstrated any imminent or irreparable harm that it will suffer if the proceedings proceed, and any alleged loss is capable of being compensated by way of damages.*** 14. ***The balance of convenience favours allowing the proceedings to continue, as the respondent stands to suffer greater prejudice from delay, while the applicant retains alternative remedies.*** 15. ***The Applicant’s allegation that failure to grant stay will render the intended appeal nugatory or result in a judicial disaster is speculative, baseless, and unsupported by evidence.*** 16. ***The applicant has failed to establish a prima facie case or demonstrate that the intended appeal raises arguable issues with a probability of success.*** 17. ***The application is an abuse of the court process as it seeks to obstruct the expeditious determination of the matter and re-open issues arising from a statutory sale concluded in 2021.*** 18. ***The applicant has alternative remedies available in law, including a claim for damages in the event undervaluation is proved, hence a stay of proceedings is unnecessary.*** 19. ***The application has been brought after inordinate delay, long after the completion of the statutory sale and transfer of the suit property to a third party who is now in occupation, rendering the application an afterthought.*** 20. ***The suit property having already been transferred to and occupied by a third party, the rights of the said third party have crystallized and cannot be defeated through a stay of proceedings.*** 21. ***The application is frivolous, vexatious, and merely intended to delay the hearing and final determination of this matter.*** 22. ***No appeal has been filed to warrant the grant of a stay of proceedings, and the present application is therefore premature, misconceived, and devoid of any legal basis, as courts do not issue orders in vain.*** 23. The learned counsel for the 1st defendant/applicant filed his submissions dated 26th March, 2026 while the learned counsel for the plaintiffs/respondents filed his submissions dated 26th March, 2026 as well. 24. I have considered the application and the grounds of opposition and the sole issue for determination is whether the applicant has met the threshold to be granted the orders of stay of proceedings. 25. In **Re Global Tours & Travel Ltd HCWC No. 43 of 2000 Ringera, J** (as he then was) held that:- ***“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 case, 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.”*** 1. The grant or refusal to stay proceedings is a judicial discretion where the court should consider the expeditious disposal of cases and whether the applicant has an arguable appeal. 2. It is the applicant’s case that it had filed a notice of appeal which has high chances of success. 3. The respondents on the other hand contend that the applicant did not meet the threshold for grant of the stay of proceedings. 4. In the case of **Kenya Power & Lighting Co. Ltd V Esther Wanjiru Wokebii Civil Appeal No. 326 of 2013 (2014) eKLR**, the court in establishing the criteria for consideration for an order of stay of proceedings held as follows:- ***“Having made that finding, it is obvious that Order 42 rule 6(2) cannot come to the aid of the applicant. The court must be guided by other considerations in making its decision whether or not to grant stay of proceedings as sought herein but then, what are those considerations.*** * 1. ***Whether the applicant has established that he/she has a prima facie arguable case.*** 2. ***Whether the application was filed expeditiously and*** 3. ***Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.”*** 1. It is worthwhile to note that this court possess powers to stay proceedings pending appeal and whose jurisdiction is derived from **Order 42, rule 6** of the Civil Procedure Rules as well **Section 3A** of the **Civil Procedure Act**. 2. The court ought to use this discretion so as to ensure proper use of judicial time and resources to dispense justice to the parties as well as guard against multiplicity of applications which are meant to delay the finalization of matters. 3. In the case of **Christopher Ndolo Mutuku & Another V CFC Stanbic Bank Ltd (2015) eKLR**, the court observed that:- ***“…what matters in an application for stay of proceedings pending appeal is the overall impression the court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…”*** 1. It is this court’s view that the circumstances in the instant case do not present any justification to warrant this court exercise its discretion to stay the proceedings. 2. It is not in dispute that the matter is still pending before this court and no final determination has been made yet. It is this court’s view that an order staying these proceedings would only delay the finalization of this case. 3. Furthermore, no prima facie case has been established to warrant the court to stay the proceedings. Notably, this court is under a duty to dispense justice to both parties and if an application is meant to delay the wheels of justice then the court must put a stop to it. 4. It is this court’s view that the applicant has not established that the appeal will be rendered nugatory if the stay of proceedings is not granted. 5. In view of the foregoing, this court finds that the applicant has not met the threshold for grant of stay of the proceedings. The same is therefore dismissed with costs. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 4TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **04/08/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Ms. Mutonyi holding brief for Mr. Okunde for the 1st Defendant/Applicant* *Mr. Wanjala for the Plaintiffs/ Respondents*