https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8032

Karanja & 3 others v Wilfred (Civil Appeal E111 of 2023) [2026] KEHC 8032 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 8032 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E111 of 2023 NIO Adagi, J June 3, 2026 Between Fredrick Kamande Karanja (Chairman) 1st Appellant Francis Kimani (Secretary) 2nd Appellant Peter Muthike (Treasurer) 3rd Appellant Mukaa Mukuu Farmers Co-operative Society Limited 4th Appellant and Peter Muasya Wilfred Respondent Ruling I.This ruling is on the Appellants’/ Applicants’ notice of motion application dated 5th September 2025, supported by the supporting affidavit sworn by Dominic Ntiiwa allegedly the Chairman of Mukaa Mukuu Farmers Co-operative Society and seeks for the following orders: -a.Spentb.That there be stay of proceedings in Nairobi CTC CASE NO. 242 OF 2013 between Peter Muasya Wilfred versus Fredrick Kamande Karanja & Others and any other proceedings or pronouncement of Judgments therein pending the hearing and determination of this Application.c.That there be stay proceedings in CTC CASE NO. 242 OF 2013 between Peter Muasya Wilfred versus Fredrick Kamande Karanja & Others and any other proceedings or pronouncement of Judgments therein pending the hearing and determination of this Appeal.d.That the costs of the application be provided for. 2.The application is premised on the grounds on the face of the application to wit that:a.Vide an application dated 31st May, 2022 the 4th Appellant/Applicant made an application to substitute a witness by replacing the name of George Musembi Mutiso (former chairman of the Society) with Peter Ngui Mulili who is the currently serving Vice Chairman of the Society but maintaining the contents of the witness statement.b.the Tribunal vide it's Ruling delivered on 27th April, 2023 declined to allow the application.c.the Appellants/Applicants being dissatisfied with the said Ruling preferred this Appeal.d.despite the existence of the present Appeal, the tribunal proceeded with the hearing of the Claimant's case ex-parte and closed the Respondent's/ Appellant's Defence suo moto.e.The Tribunal has now reserved the suit for Judgment to be delivered on 25th September, 2025 without giving the Appellant/ Applicants a chance to Defend their case.f.the Tribunal's impugned decision has driven the Applicants away from the seat of justice which is an affront to the Appellant/ Applicants Constitutional right to fair hearing.g.the dispute concerns membership of the Claimant/ Respondent in the society which ought to be determined on merits.h.interestingly, the Appellant's have on several occasions requested for the tribunal proceedings to be able to file a record of appeal but again this has been faced with unreasonably delays, clearly intended to sabotage the Applicant's quest for justice.i.unless the proceedings before the tribunal and the intended judgment is stayed, the Applicant/ Appellants will be condemned unheard and adverse judgment and orders issued against the society.j.the Respondents will not suffer any prejudice if this application is allowed since the Respondent has been enjoying interim orders allowing him to participate in the activities of the society.k.it is in the interest of justice that this Application be allowed. 3.The court has not come across any response filed by the Respondent to the instant application 4.Directions were given for the application to be canvassed through written submissions. The Applicants’ submissions are dated 30/01/2026 while the Respondent’s submissions are dated 10/02/2026. Analysis and Determination 5.I have considered the Applicant’s application and the parties’ submissions. The issue I frame for determination is whether the application is merited. 6.The brief facts of the matter are as contained in the grounds of appeal herein above.The court must be guided by other considerations in making its decision whether or not to grant stay of proceedings as sought herein. 7.The considerations that guide the court in determining whether or not to grant stay of proceedings as sought herein were set out by Justice Ringera J (as he then was) when confronted by a similar application in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 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” (emphasis added) 8.It is trite that the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles;a)Whether the applicant has established that he/she has a prima facie arguable case;b)Whether the application was filed expeditiously; andc)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; 9.Looking at the instant application from the above perspective, applicant has an arguable appeal and whether it would be in the interest of justice to order stay of proceedings of the suit in the Tribunal pending the hearing of the appeal filed by the applicants. At the time of filing this application, the applicant stated that the Tribunal case was pending judgment while in this appeal, the applicant seeks to appeal the decision of the Tribunal disallowing them to substitute their witness. That the previous witness who was to be substituted was the Chairman of the 4th Appellant/Applicant and had since left this position. The new witness is the current Vice Chairman of the 4th Respondent. The 4th Appellant being a Society, changes its officials and getting some of the old officials to testify can be difficult. Therefore, in the above circumstances, the appeal for the Appellants to be allowed to substitute their witness is arguable and warrants that an order for stay of proceedings be granted so that the lower court does not proceed and deliver a judgment without hearing the Defendants case. 10.In disallowing the 4th applicant’s application dated 31st May 2022 to substitute its witness, the Tribunal found that, the 4th applicant had all the time to substitute the witness statement and file an amended witness statement but did not. The Tribunal noted that the case was very old having been filed in 2013 and it was not disputed that the witness the 4th applicant4th Applicant sought to bring on board had been in the employment of the 4th applicant for a long time and had always attended court for the 4th applicant’s matters. However, the 4th applicant waited until its matter was called up for hearing that it sought to orally substitute the witness. 11.The Tribunal’s Ruling further shows that the matter was for defence hearing on 18th May 2022 before the Co-operative Tribunal a date that was picked by Mr. Ayieko, Counsel then appearing for the 4th applicant. On the said date, Counsel failed to avail witnesses, despite the matter being long pending. 12.Clearly this matter is very old and has been subjected to repeated postponements, which points to delaying tactics meant to frustrate the Respondent and deny him the right to timely justice. The continued filling of applications and appeals in a matter pending since 2013, without prosecution, amounts to abuse of the court process and should not be entertained. Courts exists to determine dispute, not to aid parties’ intent on delaying justice. This appeal has been pending in court since May 2023; I have seen the Memorandum of Appeal filed herein and it is my view that the same does not raise a prima facie arguable appeal. 13.As to whether the application was filed expeditiously, I wish to state from the outset that the ruling appealed against was delivered on 27th April 2023, the Memorandum of Appeal was lodged on 24th May 2023 and the instant application dated 5th September 2025 was filed on 8th September 2025. This is after a period of two (2) years and five (5) months which this considered as inordinate delay which the applicants have not attempted to explain. 14.But having said that, I think that the most important consideration that this court should bear in mind in determining this application is whether the applicants have established sufficient cause to convince the court that it would be in the interest of justice to allow the application. Put another way, have the applicants demonstrated that if the court were to decline granting orders of stay as sought they will suffer prejudice which will expose them to injustice? 15.To address this question, I need to revisit the prayers sought by the applicants in the appeal. As stated earlier, all the applicants seek in the appeal are orders setting aside the Tribunal’s order disallowing substitution of their witness. 16.. On the material placed before me, the Tribunal must have eventually delivered its judgement. In the circumstances, I find that staying of the proceedings in the Tribunal is not necessary in this case. 17.It is my considered view that allowing this application would only cause unnecessary delay in the prosecution of the respondent’s case and may have the effect of needlessly increasing costs for the parties which will be against the interests of justice. Taking into account the nature of the dispute between the parties and the fact that the suit sought to be stayed was filed in 2013 nearly nine (9) years ago, I find that allowing the application in the circumstances of this case would not only be against the interests of justice but will also frustrate the court’s overriding objective of facilitating affordable and expeditious resolution of civil disputes. 18.In view of the foregoing reasons, I am satisfied that the application dated 5th September 2025 is devoid of merit and it is consequently dismissed with costs to the respondent assessed at Kenya Shillings Thirty Thousands (Kshs.30,000/-). 19.The Appeal is hereby summarily rejected. 20.It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 3RD JUNE 2026NOEL ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD JUNE 2026In the presence of :-Mr. Ayieko for Applicant/AppellantNA for Respondent