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Itando Mission of Hope and Health Care v Munyasi & 2 others (Civil Appeal E040 of 2025) [2026] KEHC 8835 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8835 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E040 of 2025 RN Nyakundi, J June 24, 2026 Between Itando Mission of Hope and Health Care Appellant and Violet Munyasi 1st Respondent The Registered Trustees Christian Health Association Of Kenya 2nd Respondent The Registered Trustees Mudavadi Memorial Foundation 3rd Respondent (Being an appeal from the Ruling of Hon J. A. Agonda (SPM) delivered at Vihiga in Senior Principal Magistrate’s Court Civil Suit No 43 of 2018 on 24th July 2025) Judgment 1.The Brief background of this Appeal is that in her decision of 24th July 2025, the Learned Trial Magistrate, Hon J.A. Agonda, Senior Principal Magistrate, allowed the 1st Respondent’s application dated 28th January 2025 by staying the proceedings in the matter at the lower court pending the hearing and determination of Kisumu Civil Appeal No E273 of 2024 between the said 1st Respondent and the Appellant herein. 2.Being aggrieved by the said decision, on 7th August 2025, the Appellant filed a Memorandum of Appeal of even date. They relied on five (5) grounds of appeal which can be summarized as follows: -a.That the Honourable Court erred in law and in fact by disregarding the principles of judicial comity and stare decisis when it stayed the proceedings in Civil Suit No. 43 of 2018 Violet Munyasi Vs The Registered Trustees Christian Health Association of Kenya & 2 Others contrary to the express orders issued by the High Court in HCCA No. E030 of 2022 Itando Mission of Hope & Health Care Vs Violet Munvasi & 2 Others and thus occasioned a miscarriage.b.That the Honourable Court erred in law and in fact when it applied the test applicable in stay of proceedings to the stay of proceedings application before her and therefore arrived at an erroneous conclusion contrary to law and the evidence before her.c.That the Honourable Court erred in law and in fact in allowing the Application for stay of proceedings and thus contradicted and/or overruled the High Court which had ordered the proceedings in Civil Suit No. 43 of 2018 Violet Munyasi Vs the Registered Trustees Christian Health Association of Kenya & 2 Others to commence de novo.d.That the Honourable Court erred when it failed to find and hold that it could not vary, vacate, modify or stay orders issued by a Court higher in judicial hierarchy and in particular when the orders appealed against at the Court of Appeal No. E273 of 2024 Violet Munyasi Vs Itando Mission of Hope & Health Care are orders of the High Court in Civil Appeal No E030 of 2022 Itando Mission of Hope & Health Care Vs Violet Munvasi & 2 Others and not of the trial court in Civil Suit No. 43 of 2018 Violet Violet Munyasi Vs the Registered Trustees Christian Health Association of Kenya & 2 Others.e.That the Honourable Court erred in law and in fact in allowing the Application dated 28th January 2025. 3.The Appellant sought the following prayers from the Memorandum of Appeal: -a.The Appeal herein be allowed.b.The Application dated 28th January 2025 be dismissed and the Court to order that Civil Suit No. 43 of 2018 Violet Violet Munyasi Vs the Registered Trustees Christian Health Association of Kenya & 2 Others begin de novo pursuant to the Judgment of the High Court in Civil Appeal No. E030 of 2022 Itando Mission of Hope & Health Care Vs Violet Munyasi & 2 Others.c.Costs of Appeal to be provided for. 4.The Appeal was canvassed by way of written submissions. Appellant’s Written Submissions 5.The Appellant filed its written submissions dated 7th May 2026. The Appellant opined that the Trial Court ran afoul the express and unequivocal orders of the High Court in staying the said proceedings and urged this court to pronounce itself on the question of whether a subordinate court could vary or disregard the express orders of a superior court where there was no stay of those orders from the High Court or the Court of Appeal. 6.It placed reliance on the cases of Lucy Waithera Kimanga & 2 Others vs John Waiganjo Gichuri [2015] eKLR where it was held that the right of appeal has to be balanced against the right of the plaintiff to equal treatment in law and to have his case determined without unreasonable delay and Repulic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae)[2024] KESC 34 (KLR) where it was held that Kenya’s stare decisis principle was a constitutional obligation meant to enhance the legal system’s predictability and certainty. 7.It argued that a stay of proceedings order was a radical remedy which was only granted in very exceptional circumstances in the exercise of discretion by a court of law and that the discretion was unfettered but it had to be exercised judicially as was held in the case of M/S Karsan Ramji & Sons Limited vs Athumani & Another (Suing for and on behalf of the Wamwanyundo Clan & 6 Others)[2024] KECA 563 (KLR). 8.It asserted, therefore, that the Trial Court erred by failing to appreciate that stay of proceedings order was only granted in exceptional circumstances where such proceedings were likely to infringe on constitutional right of one of the parties or prejudice the interest of justice. It added that the said court also erred in failing to hold that the proper forum for the orders of stay of proceedings in the circumstances of the case ought to be the High Court or the Court of Appeal which was seized with the second appeal. 9.It invoked Articles 48 and 50(1) of the Constitution of Kenya, 2010 and submitted that the overriding objective of this court was to do justice and render justice in an expeditious affordable manner and through the use of the appropriate technology. It further relied in the case of MRM aka RLM Vs SMRM[2024] KEHC 446 (KLR) where it was held that stay of proceedings impinges on the right of access to justice, right to be heard and right to fair trial, and therefore the test of granting the same was high and stringent. It urged this court to find that the Trial Court erred in staying its own proceedings and further allow its appeal with costs. 1st Respondent’s Written Submissions 10.The 1st Respondent filed its written submission dated 11th May 2026. She submitted that she was the one who applied for the stay of proceedings and that she provided for security for the same. She contended that if the Court of Appeal determines that the hearing was fair and the Judgment of the High Court is reinstated, it would mean that the subsequent proceedings of the lower court would be a nullity and a waste of judicial time. 11.She asserted that if the matter at the lower court proceeds and a Judgment is pronounced and the Court of Appeal finds otherwise, that would cause an embarrassment to the courts as there would be a likelihood of two (2) different Judgments. She placed reliance in the case of Karia vs Keshe [2024] KEELC 1184(KLR) where it was held that to grant a stay of proceedings was a matter of judicial discretion to be exercised in the interest of justice. She further cited the case of Lilian Auma & Others vs Halima Godana Family Appeal No 001 of 2025 where it was held that while considering whether to grant stay of proceedings, the court also has to look at the established requirements under Order 46 Rule 2 of the Civil Procedure Rules. She asserted that the Trial Court looked into the said factors together with the record of appeal filed at the Court of Appeal and made a finding that not only will a substantial loss occur if she proceeded but that there would be a waste of judicial time if the Court of Appeal allows the appeal. 12.She was emphatic that even where the matter had been referred back to the trial court by the High Court, the trial court still had the discretion to look at the issues before it and what was substantially before other courts and make a determination, whether or not it has a direct impact on the court. It was her case that the trial court acted justly and that the Appellant’s appeal herein lacked merit and should be dismissed with costs. 2nd Respondent’s Written Submissions 13.The 2nd Respondent filed its written submissions dated 21st May 2026 in opposition of the Appeal. It submitted that the trial Magistrate properly exercised her judicial discretion in staying the trial court proceedings pending the determination of a related appeal in the Court of Appeal. It was argued that the Magistrate correctly applied established legal principles, including finding that the four-month period between the High Court's judgment and the stay application did not constitute unreasonable delay. The 2nd Respondent emphasized that the 1st Respondent would suffer substantial loss specifically the monetary costs of conducting a fresh hearing and calling witnesses should the trial proceed de novo while an appeal is pending that could render such efforts nugatory or merely an academic exercise. This position was supported by the legal standards set out in Stephen Maina Githiga & 5 Others Vs Kiru Tea Factory Co Ltd SC Application No. 12 of 2019 and Ivivya & Another Vs Kituku & Another [2025] KEELC 18635 (KLR), which establish that a stay is appropriate when there is an arguable appeal and a risk of substantial loss or rendering the appeal nugatory. 14.The 2nd Respondent further submitted that the Appellant's challenge to the trial court's jurisdiction to stay orders issued by a higher court is procedurally barred because the Appellant failed to raise a preliminary objection on this issue during the initial proceedings. Relying on the precedent in Owners of the Motor Vessel Lillian “S” -vs- Calex Oil (Kenya) Limited [1989] KECA 48 (KLR), the 2nd Respondent argued that a party who fails to question jurisdiction at the first instance cannot raise it for the first time on appeal. Substantively, the 2nd Respondent maintained that the Magistrate did not overrule the High Court's order for a de novo trial; instead, the Magistrate exercised legitimate jurisdiction to stay those de novo proceedings which had already commenced to preserve the subject matter of the pending appeal. Consequently, the 2nd Respondent requested that the current appeal be dismissed with costs. 3rd Respondent’s Written Submissions 15.I take note that at the time of writing this judgment, a look at the court record and CTS indicates that the 3rd Respondent had not yet filed its written submissions. I will however determine the Appeal on its merits. Analysis and Determination 16.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters Vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 17.It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: -“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 18.Having looked at the Grounds of Appeal and the parties’ Written Submissions, it appears to this court that the only issue that has been placed before it for consideration is: -Whether the Trial Court erred in staying the proceedings of this matter at the lower court pending the hearing and determination of the Appeal lodged at the Court of Appeal in Kisumu Civil Appeal No E273 of 2024. 19.Notably, the background of this case is that this court delivered its Judgment in Vihiga High Court Civil Appeal No E030 of 2022 Itando Mission of Hope and Health Care Vs Violet Munyasi & 2 Others on 24th September 2024 and ordered that the trial before the lower court to begin de novo. The 1st Respondent then proceeded to file a Notice of Appeal against the impugned Judgment of this court, having lodged an appeal at the Court of Appeal in Kisumu Civil Appeal No E273 of 2024. 20.The 1st Respondent further moved the Trial Court on 28th January 2025 seeking orders of stay of proceedings in Vihiga Magistrates Court Civil Suit No 43 of 2018. The Trial Court allowed her application and stayed its own proceedings pending the determination of the appeal lodged at the Court of Appeal. Order 42 Rule 6 of the Civil Procedure Rules stipulates;“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.No order for stay of execution shall be made under sub rule 1 unless:-a.The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb.Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. 21.Notably, although the 1st Respondent cited the conditions set out under order 42 Rule 6 of the Civil Procedure Code, the Sub-rule 1 mentions both the stay of execution and stay proceedings while the conditions given under Sub-rule 2 apply solely to stay of execution pending appeal and not stay of proceedings. 22.In Kenya Shell Limited vs Benjamin Karuga Kibiru & Another [1986] eKLR and Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000), the courts therein laid down the following four (4) principles: -a.First, there must be an appeal pending before the higher Court;b.Second, where such stay is sought in the court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;c.Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;d.Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted.” 23.All these factors must be considered, in a given case, in the spirit concisely expressed in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330;“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 proceedings, beyond 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 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 this case.” 24.The grant of an application to stay proceedings is within the discretion of the court. I am also aware that any exercise of such discretion has to be done in the interest of justice of each case and must be judicious. In the case of Globoal Tours & Travels Limited 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 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…” 25.In Christopher Ndolo Mutuku & another Vs CFC Stanbic Bank Ltd [2015] eKLR it was held that-;“But 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. The court is aware the defendant has unfettered right of appeal which it has sought to exercise. But that right has to be balanced against the right of the plaintiff to equal treatment in law and to have his case determined without unreasonable delay. That constitutional desire demands that proceedings should not be hindered without just and sufficient cause. That position of the law is informed by the principle of justice in Article 159 of the Constitution which expresses the now commonly principle of law known as the overriding objective of the law, that cases should be disposed of in a just, proportionate, expeditious and affordable manner. That explains why the law on stay of proceedings pending appeal will be concerned with the sole question of whether it is in the interest of justice to order a stay of proceedings…” 26.In the case of Kenya Wildlife Service Vs James Mutembei [2019] eKLR it was held that: -“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave Judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access for justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceedings is high and stringent…” 27.Based on the above legal principles, a stay of proceedings is a radical remedy which is only granted in very exceptional circumstances. In the present case, it is not possible to say that the preferred appeal is not arguable. As numerous decisions have held, 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. The 1st Respondent noted that the Trial Court was able to look at the Record of Appeal filed and was satisfied that substantial loss would occur if she proceeds with the matter. The Appeal, therefore, passes the arguability test. 28.As a general rule the High Court will not interfere with findings made by the trial court unless it finds that the trial court erred in law and/or misapprehended the facts in interpreting the evidence. In Kiruga Vs Kiruga & Another [1988] eKLR the court observed as follows: -“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.” 29.It is a fundamental principle of law that no person should be condemned unheard. This right to be heard stems from the latin maxim ‘audi alteram partem’ which literally means ‘listen to the other side’ or ‘let the other side be heard as well’. Natural Justice squires that a person be afforded the right to be heard before any orders adverse to himself are made. Article 50 of the Constitution of Kenya 2010 provides that: -“50(1) every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” [own emphasis] 30.In Onyango Oyoo Vs Attorney General [1986-1989] E.A 456 the court held as follows: -“There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. 31.In the circumstances of the case, this court is persuaded that the appeal will be rendered nugatory by the mere fact that the trial may proceed and a judgment on merits given which may be contrary to the Judgment of the superior court. Obstructing the 1st Respondent from proceeding with the appeal at the Court of Appeal would be tantamount to violating her right to being heard as provided for under Article 50 of the Constitution. 32.In particular, the Applicant had demonstrated that there were exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded. These factors go to show that if further proceedings are not stayed at the lower court, the substratum of the intended appeal will disappear and the appeal will be rendered nugatory. This court cannot, therefore, fault the Trial Court for staying its proceedings in this case pending the hearing and determination of the Appeal in the Court of Appeal as proceeding with the same would amount to an academic exercise. 33.Consequently, this court finds that the Appellant’s Appeal dated and filed on 7th August 2025 is without merit and the same is hereby dismissed with costs. 34.Orders accordingly. DATED, SIGNED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 24TH DAY OF JUNE 2026………………………………………….R. NYAKUNDIJUDGE