https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12980

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E731 OF 2025 (CONSOLIDATED WITH CIVIL APPEAL NOS.E863 & 197 OF 2025)** **KENYA LEGAL AND ETHICAL ISSUES** **NETWORK ON HIV & AIDS (KELIN)......................1ST APPELLANT** **TRUST FOR INDIGENOUS CULTURE AND HEALTH………………………………………….**................**2ND APPELLANT** **IPAS AFRICA ALLIANCE**.............................................**3RD APPELLANT** **-VERSUS-** **KENYA CHRISTIAN PROFESSIONALS’ FORUM…**.**1ST RESPONDENT** **CHARLES KANJAMA**................................................**2ND RESPONDENT** **DR. WAHOME NGARE**.............................................**3RD RESPONDENT** **RULING** **Introduction** 1. Before this Court are three applications filed by the respective Appellants seeking principally orders for stay of proceedings in **Milimani CMCC No. E5487 of 2024, Kenya Christian Professionals Forum & 2 Others vs Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN) & 2 Others**, together with stay of execution and enforcement of the ruling and consequential orders delivered by **Hon. A. Nyoike, Senior Principal Magistrate**, on 5th June, 2025, pending the hearing and determination of the consolidated appeals. 2. The appeals arise from the decision of the learned trial magistrate granting interlocutory injunctive orders restraining the Appellants from issuing, publishing or causing to be published statements alleged to be defamatory of the Respondents pending the hearing and determination of the suit before the subordinate court. The trial court also declined to discharge the interim orders that had earlier been granted *ex parte*. 3. The Appellants, being dissatisfied with the said ruling, separately lodged appeals challenging both the legal and factual basis upon which the interlocutory injunctions were granted. Simultaneously, each Appellant moved this Court seeking orders preserving the subject matter of the appeals by staying the proceedings before the subordinate court together with the execution and enforcement of the impugned orders pending the determination of the appeals. 4. Upon considering the nature of the appeals and the issues arising therefrom, this Court directed that the appeals together with the interlocutory applications be consolidated, the common thread running through all the matters being that they challenge the same ruling delivered on 5th June 2025 in **Milimani CMCC No. E5487 of 2024** and raise substantially similar questions of law and fact. The Court further directed that the application filed by the 1st Appellant would constitute the lead file, while the pleadings, affidavits and submissions filed by the other Appellants would be deemed duly filed in the consolidated proceedings. 5. The record shows that the 1st Appellant, **Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN),** filed its Notice of Motion dated 15th July, 2025 supported by the affidavit of Allan Maleche sworn on the same date. The 2nd Appellant subsequently filed a Notice of Motion dated 20th August, 2025 supported by the affidavit of Jedidah Maina, while the 3rd Appellant, **IPAS Africa Alliance**, likewise filed its own application seeking substantially similar reliefs. Owing to the commonality of the questions presented, directions were issued that all the applications be heard together through written submissions. 6. The Respondents opposed the applications through a Replying Affidavit together with detailed written submissions, contending that the Appellants had failed to satisfy the well-established principles governing the grant of stay of proceedings pending appeal. According to the Respondents, the applications constitute an attempt to delay the expeditious determination of the defamation suit while permitting the Appellants to evade compliance with subsisting injunctive orders lawfully issued by the subordinate court after an inter partes hearing. 7. The Court has carefully considered the respective Notices of Motion, the supporting affidavits, the Replying Affidavit filed on behalf of the Respondents, the written submissions filed by the three Appellants, the Respondents' submissions, together with the rejoinder filed by the 1st Appellant. The Court has equally considered the authorities cited by all the parties. 8. It bears emphasis at the outset that this ruling is not concerned with the merits of the consolidated appeals. The Court is only called upon to determine whether the Appellants have established a proper basis for the grant of the interlocutory reliefs sought pending the hearing and determination of the appeals. Consequently, the Court must refrain from making definitive pronouncements on the substantive questions reserved for determination in the appeals lest it embarrass the bench that shall eventually hear them. 9. The applications nevertheless raise important questions touching on the proper exercise of judicial discretion in applications for stay of proceedings pending appeal, the extent to which an appellate court ought to intervene in interlocutory orders issued in defamation proceedings, and the manner in which courts should balance the constitutional guarantees of freedom of expression under **Article 33 of the Constitution** against the equally protected right to dignity and reputation under **Articles 28 and 33(3) of the Constitution**. They further call upon the Court to consider whether the circumstances presented disclose the exceptional case in which the extraordinary remedy of stay of proceedings should issue. 10. Having considered the pleadings and the rival submissions, it is the Court's view that the applications fall for determination upon well-settled principles governing stay of proceedings pending appeal, applied to the particular facts of this case. 11. Before embarking upon that analysis, it is appropriate to set out, in summary, the respective positions taken by the parties in support of and in opposition to the applications. That is the subject of the next part of this ruling. **Parties' Respective Positions** 1. Pursuant to the directions issued by this Court, the three applications for stay were canvassed by way of written submissions following the consolidation of the appeals. Although each Appellant filed a separate application and supporting affidavit, the factual background, the impugned ruling, and the reliefs sought are substantially similar. Consequently, the Court shall summarize the respective positions adopted by the parties before identifying the issues falling for determination. **The Appellants' Case** 1. The Appellants contend that they are dissatisfied with the ruling delivered by **Hon. A. Nyoike**, **Senior Principal Magistrate**, on 5th June, 2025 granting interlocutory injunctive orders restraining them from issuing or publishing statements alleged to be defamatory of the Respondents pending the hearing and determination of the suit before the subordinate court. They argue that the learned magistrate improperly exercised judicial discretion by granting what they describe as "gag orders" which have the effect of restraining constitutionally protected expression before liability has been established at trial. 2. The 1st Appellant, through the Supporting Affidavit sworn by Allan Maleche, deposes that the appeal raises serious and arguable questions of both law and fact which deserve consideration by this Court. It is averred that unless the proceedings before the subordinate court are stayed, the appeal will be rendered nugatory because the Appellants will be compelled to defend the suit while simultaneously remaining bound by interlocutory orders whose legality forms the very subject of the appeal. According to the 1st Appellant, continuation of the proceedings under the impugned orders would irreversibly prejudice the integrity of the appellate process. 3. The Appellants further maintain that the learned trial magistrate departed from settled principles governing interlocutory injunctions in defamation matters. They submit that the court failed to apply the heightened threshold established in ***Cheserem v Immediate Media Services & 4 Others [2000] eKLR***, instead applying the ordinary principles in ***Giella v Cassman Brown & Co. Ltd [1973] EA 358***without appreciating that defamation claims require greater judicial restraint before prior restraint orders may issue. 4. The Appellants also argue that the learned magistrate prematurely determined contested issues of fact at an interlocutory stage. In particular, they submit that the court treated disputed matters relating to authorship, publication, truthfulness of the impugned statements, and the availability of constitutional and common law defences as though they had already been conclusively established, thereby prejudicing the fairness of the impending trial. 5. The 3rd Appellant, IPAS Africa Alliance, emphasizes that no evidence was placed before the subordinate court demonstrating that it authored, published or disseminated the allegedly defamatory letter complained of by the Respondents. It contends that despite expressly denying authorship and publication, the trial court nonetheless proceeded to issue injunctive orders against it, effectively presuming liability before evidence had been tested during the trial. According to the 3rd Appellant, this constitutes a serious error of law which renders the intended appeal plainly arguable. 6. The Appellants further submit that the learned magistrate failed to appreciate the constitutional dimensions of the dispute. They argue that the impugned orders substantially limit their rights to freedom of expression, freedom of association and participation in public affairs protected under **Articles 33, 36 and 118 of the Constitution**. In their view, the injunctions amount to prior restraint on speech, thereby imposing a continuing limitation upon legitimate public interest advocacy undertaken by civil society organizations. 7. The Appellants also contend that the appeal raises wider public interest considerations extending beyond the private rights of the litigants. They argue that the litigation implicates constitutional questions concerning the permissible limits of judicial restraint on expression, the protection afforded to civil society advocacy organizations, and the emerging concern regarding Strategic Lawsuits Against Public Participation (SLAPPs). They therefore urge the Court to preserve the appellate process by staying the proceedings pending determination of these important constitutional questions. 8. In support of the applications, the Appellants rely upon the decisions in ***Butt v Rent Restriction Tribunal [1979] eKLR****,* ***Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR****,* ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR****,* ***Meta Platforms Inc & Another v Motaung & Another; Kenya National Human Rights Equality Commission & 9 Others [2023] KECA 996 (KLR)****,* ***Meta Platforms Inc & Another v Samasource Kenya EPZ Limited t/a Sama & 185 Others [2023] KECA 999 (KLR)***, among other authorities. They submit that those decisions demonstrate that where an interlocutory appeal is arguable and continuation of proceedings would render the appeal nugatory or conclusively determine disputed issues before trial, the appellate court ought to intervene by granting stay of proceedings. 9. The 1st Appellant further filed a rejoinder to the Respondents' submissions, reiterating that the applications satisfy the criteria articulated by the Court of Appeal in the ***Meta Platforms*** decisions. It maintains that the impugned ruling conclusively determined disputed questions of fact, resolved issues separate from the merits of the suit, and imposed restrictions whose constitutional consequences cannot adequately be remedied after the conclusion of the trial. It is therefore urged that this Court should preserve the efficacy of the appeals by granting the orders sought. **The Respondents' Case** 1. The Respondents oppose all the applications through a Replying Affidavit dated 9th October, 2025 and comprehensive written submissions. Their position is that the Appellants have failed to establish the exceptional circumstances necessary to justify the grant of an order staying proceedings before a competent court. 2. The Respondents submit that an order staying proceedings constitutes one of the most serious forms of judicial intervention since it directly interferes with a litigant's right to prosecute a duly instituted claim. They argue that such jurisdiction should only be exercised sparingly and in exceptional circumstances where the interests of justice plainly require it. 3. According to the Respondents, the applications are nothing more than an attempt to delay the hearing of the defamation suit and avoid compliance with subsisting injunctive orders issued after an inter partes hearing. They contend that the Appellants have not demonstrated any substantial prejudice that cannot adequately be remedied should the appeals eventually succeed. 4. The Respondents further submit that the impugned injunction merely restrains the publication of statements found, on a prima facie basis, to be defamatory. They argue that the orders do not prohibit lawful advocacy or constitutionally protected expression, but merely restrain further publication of statements capable of causing injury to the Respondents' reputation pending the hearing of the suit. Consequently, the allegation that the orders constitute an unconstitutional "gag order" is, in their view, misplaced. 5. It is further submitted that continuation of the subordinate court proceedings will not render the appeals nugatory because the appeals challenge only interlocutory orders. The Respondents maintain that should the Appellants ultimately succeed, the appellate court retains jurisdiction to grant appropriate relief. They therefore argue that no irreparable prejudice has been demonstrated to justify halting the entire proceedings before the trial court. 6. The Respondents also contend that public interest favours the expeditious disposal of litigation. They invoke **Articles 50(1) and 159(2)(b) of the Constitution**, arguing that justice delayed undermines both the constitutional rights of litigants and the efficient administration of justice. In their view, granting a stay would unnecessarily prolong the determination of a suit already pending before the subordinate court while permitting the Appellants to continue delaying the vindication of the Respondents' reputational rights. 7. In support of their position, the Respondents rely upon ***Kenya Wildlife Service v James Mutembei [2019] eKLR****,* ***Kenya Power & Lighting Company Ltd v Esther Wanjiru Wokabi [2014] eKLR****,* ***Global Tours & Travels Ltd, Nairobi HC Winding Up Cause No. 43 of 2000****,* ***Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR)****,* ***Lucy Waithera Kimanga & 2 Others v John Waiganjo Gichuri [2015] eKLR***, among other authorities, to demonstrate that stay of proceedings is an exceptional remedy that should only issue where compelling circumstances have been established. 8. I now turn to consider the applicable legal principles governing applications for stay of proceedings and the exercise of this Court's discretionary jurisdiction. That is the subject of the next part of this ruling. **Analysis And Determination** **Applicable Legal Principles** 1. Having carefully considered the respective positions taken by the parties, the pleadings on record, the affidavits sworn in support of and in opposition to the applications, the written submissions and the authorities cited, it is now incumbent upon this Court to determine whether the Appellants have satisfied the threshold for the grant of the orders sought. 2. At the outset, it is important to reiterate that the Court is presently not sitting as the appellate court determining the merits of the consolidated appeals. The Court is only called upon to determine whether sufficient cause has been demonstrated to warrant the exercise of its discretionary jurisdiction to stay proceedings before the subordinate court pending the hearing and determination of those appeals. It therefore bears repeating that any observations made herein are confined solely to the determination of the present applications and should not be construed as expressing any concluded opinion on the merits of the appeals. 3. The applications before the Court principally seek two reliefs, namely, **stay of execution or enforcement of the interlocutory injunctive orders** issued on 5th June, 2025 and **stay of further proceedings** in **Milimani CMCC No. E5487 of 2024** pending the determination of the appeals. Although both remedies are provided for under **Order 42 Rule 6 of the Civil Procedure Rules**, the legal principles governing stay of proceedings are considerably more stringent than those applicable to ordinary stay of execution. 4. **Order 42 Rule 6(1) of the Civil Procedure Rules** provides: ***"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 to may for sufficient cause order stay of execution of such decree or order or stay of proceedings..."*** 1. It is therefore clear from the foregoing provision that the filing of an appeal does not, of itself, operate as a stay either of execution or of proceedings. An applicant must affirmatively satisfy the Court that sufficient cause exists to justify the exercise of judicial discretion in his or her favour. 2. The jurisdiction to stay proceedings pending appeal has, however, consistently been described by the superior courts as an extraordinary jurisdiction to be exercised sparingly and only in exceptional circumstances. This is because an order staying proceedings has the immediate effect of preventing a litigant from pursuing a claim that has been properly instituted before a court of competent jurisdiction, thereby delaying the administration of justice. 3. The Court in [***Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/10478/eng%402019-01-31)underscored this position when it observed that a stay of proceedings is a grave judicial action which seriously interferes with a litigant's right to have his dispute heard and determined without unreasonable delay. The Court emphasized that because such an order impinges upon the constitutional right to access justice and fair hearing, the threshold for granting it is necessarily high and stringent. 4. More recently, the Court of Appeal revisited these principles in [***Meta Platforms, Inc & another v Samasource Kenya EPZ Limited t/a Sama & another; Kenya National Humans Rights Equality Commission & 9 others (Interested Parties) [2023] KECA 996 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/996/eng%402023-07-28)where it distilled the considerations applicable in applications seeking stay of proceedings pending appeal. The Court held that before granting such relief, the appellate court should satisfy itself, among other things, that: 5. ***There exists a competent appeal;*** 6. ***The appeal is arguable and not frivolous;*** 7. ***Refusal to grant stay would render the appeal nugatory;*** 8. ***The circumstances justify interruption of the proceedings before the trial court; and*** 9. ***The balance of justice favours preservation of the subject matter pending appeal.*** 10. Equally instructive is the Court of Appeal's decision in [***Meta Platforms, Inc & another v Samasource Kenya EPZ Limited t/a Sama & 185 others; Central Organization of Trade Unions Kenya & 8 others (Interested Parties) [2023] KECA 999 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/999/eng%402023-07-28)where the Court observed that exceptional circumstances capable of justifying stay of proceedings may arise where the interlocutory order conclusively determines disputed questions of fact, resolves issues that are distinct from the merits of the main suit, or where the impugned order would effectively become incapable of meaningful appellate review if proceedings are permitted to continue. 11. The foregoing decisions are consistent with the broader jurisprudence governing appellate intervention. In [***Stanley Ng’ethe Kinyanjui v Tony Ketter & 5 others [2015] KECA 790 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/790/eng%402015-04-24) the Court of Appeal explained that an arguable appeal is not one that must necessarily succeed; it is sufficient if it raises at least one bona fide issue deserving consideration by the appellate court. 12. Similarly, the Supreme Court in ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] KECA 876 (KLR)*** emphasized that an appeal is rendered nugatory where the eventual success of the appeal would be rendered merely academic or incapable of yielding practical relief. 13. On the other hand, the Respondents have correctly submitted that an arguable appeal alone does not automatically entitle an applicant to stay of proceedings. The Court must remain alive to the constitutional imperative under **Articles 48, 50(1) and 159(2)(b) of the Constitution** which require courts to facilitate access to justice and ensure that disputes are heard and determined without undue delay. Consequently, the discretion to halt ongoing proceedings should only be exercised where the interests of justice plainly outweigh the equally important public interest in the expeditious disposal of litigation. 14. This balancing exercise was succinctly captured by the Court of Appeal in [***Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1979/22/eng%401979-07-16)where the Court held that judicial discretion should be exercised in a manner that does not render an appeal nugatory while at the same time avoiding unnecessary prejudice to the successful litigant. 15. Having carefully considered the rival affidavits, the submissions of counsel and the authorities cited by all the parties and guided by the foregoing constitutional and statutory framework, together with the binding jurisprudence of the superior courts, this Court considers that the following questions arise for determination: 16. ***Whether the consolidated appeals are arguable;*** 17. ***Whether the Appellants have demonstrated exceptional circumstances warranting stay of proceedings;*** 18. ***Whether refusal to grant stay would render the appeals nugatory or occasion substantial prejudice incapable of being remedied at the conclusion of the appeals; and*** 19. ***Whether, upon balancing the competing constitutional rights and the interests of justice, this Court should exercise its discretion in favour of granting the orders sought.*** 20. I now proceed to examine each of these issues against the facts presented in the consolidated applications. The first question is whether the Appellants have demonstrated that the appeals raise arguable issues deserving consideration by this Court. That issue is addressed in the next section of this ruling. **Whether the Appellants have established that the Appeals are Arguable and Whether Sufficient Cause Exists to Warrant Stay of Proceedings** 1. The first issue for determination is whether the Appellants have demonstrated that the consolidated appeals raise arguable questions deserving consideration by this Court. It is now settled that an arguable appeal is not one that must necessarily succeed. Rather, it is one that raises at least one bona fide issue worthy of judicial consideration. As was stated by the Court of Appeal in ***Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others*(supra),** an arguable appeal need only raise a single arguable point and need not ultimately succeed. 2. From the respective Memoranda of Appeal, the Appellants challenge, inter alia, the learned trial magistrate's application of the principles governing interlocutory injunctions in defamation proceedings; the finding that the Respondents had established a prima facie case; the treatment of disputed factual matters relating to authorship and publication of the impugned statements; the alleged failure to consider the constitutional protections relating to freedom of expression; and whether the interlocutory orders had the effect of prejudging the substantive dispute before trial. 3. Without expressing any concluded opinion on the merits of those complaints, and bearing in mind that this Court must avoid embarrassing the bench that shall eventually determine the substantive appeals, I am satisfied that the issues raised are neither idle nor frivolous. They raise legitimate questions regarding the proper exercise of judicial discretion in interlocutory applications in defamation proceedings and the extent to which a court should balance the constitutional right to freedom of expression against the equally protected right to reputation. 4. Indeed, the Appellants have relied heavily upon the decision in ***Cheserem v Immediate Media Services [2010] KEHC 4109 (KLR)*** to contend that interlocutory injunctions in defamation matters should only issue in the clearest of cases. Whether or not the learned trial magistrate properly appreciated and applied that principle is a matter that can only be conclusively determined during the hearing of the appeals. At this stage, it suffices to observe that the issue is not plainly frivolous. 5. Similarly, the Appellants contend that the learned magistrate made findings which effectively determined disputed factual issues before the evidence had been tested at trial. Whether that contention is ultimately meritorious is a question reserved for the hearing of the appeals. However, I am persuaded that it raises an arguable issue deserving appellate interrogation. 6. I therefore find that the Appellants have demonstrated that the consolidated appeals are arguable. 7. That finding, however, does not automatically entitle the Appellants to the orders sought. The law is equally settled that the existence of an arguable appeal is only one factor to be considered. An applicant seeking stay of proceedings must go further and demonstrate sufficient cause and exceptional circumstances warranting interruption of proceedings before a court of competent jurisdiction. 8. The Respondents have correctly submitted that stay of proceedings is a drastic remedy. The Court entirely agrees. Proceedings commenced before a competent court should ordinarily be allowed to proceed to their logical conclusion without interruption. This is consistent with the constitutional dictates under **Articles 48, 50(1) and 159(2)(b) of the Constitution**, which require courts to facilitate access to justice and ensure that justice is administered without undue delay. 9. Consequently, the discretion to stay proceedings must be exercised sparingly and only where the interests of justice plainly demand such intervention. As **Ringera J.** observed in ***Global Tours & Travels Limited(supra)***, the Court must weigh the competing interests of the parties, bearing in mind not only the arguability of the appeal but also the need for expeditious disposal of litigation and the proper utilization of judicial time. 10. The Respondents urge the Court to find that no exceptional circumstances have been demonstrated because the appeal challenges merely interlocutory orders and that any prejudice suffered by the Appellants can adequately be remedied after the conclusion of the trial. 11. Ordinarily, I would be inclined to agree that interlocutory appeals should not routinely interrupt proceedings in the subordinate courts. Were that to become the norm, every dissatisfied litigant would simply file an interlocutory appeal and seek to stall proceedings, thereby undermining the constitutional objective of expeditious disposal of disputes. 12. However, each case must ultimately be determined on its own peculiar facts and circumstances. In the present matter, the impugned ruling is not an ordinary procedural ruling. The orders issued by the subordinate court continue to regulate the conduct of the Appellants pending the hearing of the suit, and it is those very orders whose legality is under challenge before this Court. The applications therefore raise more than a mere complaint against an interlocutory procedural direction. 13. I have also taken into account the decisions of the Court of Appeal in ***Meta Platforms Inc & Another v Motaung & Another; Kenya National Human Rights Equality Commission & 9 Others(supra) and Meta Platforms Inc & Another v Samasource Kenya EPZ Ltd t/a Sama & 185 Others(supra)***, both of which recognise that, in appropriate circumstances, stay of proceedings may issue where continuation of the proceedings would substantially diminish the utility of the pending appeal or where the interlocutory order substantially affects rights that may not be adequately vindicated after final judgment. 14. While I refrain from making any definitive pronouncement on whether the impugned orders amount to unconstitutional prior restraint, I am satisfied that the appeals raise substantial constitutional questions regarding the proper balance between the right to freedom of expression guaranteed under **Article 33 of the Constitution** and the right to reputation protected under **Article 33(3).** Those questions ought to receive meaningful appellate consideration before the proceedings in the subordinate court progress further. 15. In my considered view, allowing the subordinate court proceedings to proceed to full hearing while the legality and propriety of the interlocutory orders remain under active appellate challenge carries a real risk that the appeals may lose much of their practical efficacy. Although the appeals may not become entirely nugatory, there is a legitimate concern that the appellate court's eventual determination on the propriety of the interlocutory orders could be overtaken by subsequent developments in the trial court, thereby diminishing the utility of the appellate process. 16. Taking all these factors into account, and without making findings that may prejudice the hearing of the substantive appeals, I am persuaded that the Appellants have established sufficient cause to justify this Court's intervention. In the peculiar circumstances of this consolidated matter, the interests of justice favour preserving the status quo pending the determination of the appeals. 17. I therefore find that the Appellants have demonstrated both an arguable appeal and sufficient cause warranting the grant of an order staying further proceedings before the subordinate court pending the hearing and determination of the consolidated appeals. **Whether the Appellants have demonstrated that they will suffer substantial loss, whether the appeals will be rendered nugatory, and where the balance of justice lies** 1. The next issue for determination is whether the Appellants have demonstrated that unless the orders sought are granted, they stand to suffer substantial loss, the appeals will be rendered nugatory, and whether, in the exercise of this Court's discretion, the interests of justice favour the grant of stay. 2. Although **Order 42 Rule 6(2) of the Civil Procedure Rules** expressly speaks to substantial loss in the context of stay of execution, the concept remains equally relevant in applications for stay of proceedings. However, the prejudice contemplated in an application for stay of proceedings is not merely financial. Rather, the Court must consider whether permitting the proceedings to continue would occasion prejudice of such a nature that the intended appeal would be deprived of practical utility or the appellate court's eventual decision rendered ineffectual. 3. The Appellants contend that unless the proceedings before the subordinate court are stayed, the impugned interlocutory orders will continue to operate throughout the pendency of the suit, thereby restraining their ability to communicate on matters they consider to be of public interest. They further argue that continuation of the proceedings would allow the trial to proceed upon a foundation they contend was laid through an erroneous interlocutory determination, thereby compromising the efficacy of the pending appeals. 4. The Respondents, on the other hand, maintain that the Appellants have failed to demonstrate any actual prejudice, contending that the impugned orders merely restrain publication of statements found, on a prima facie basis, to be defamatory and do not prevent legitimate advocacy within the confines of the law. They further submit that any prejudice ultimately suffered by the Appellants can adequately be remedied by the appellate court should the appeals succeed. 5. I have considered the rival arguments. It is beyond dispute that the right to freedom of expression guaranteed under **Article 33 of the Constitution** occupies an important place in Kenya's constitutional order. Equally, however, **Article 33(3)** expressly provides that in the exercise of that freedom every person shall respect the rights and reputation of others. The Constitution therefore does not elevate one right above the other; rather, it requires courts to strike an appropriate balance between these competing constitutional values. 6. It follows that this Court must be cautious not to determine, at this interlocutory stage, whether the impugned orders amount to an unjustifiable limitation of constitutional rights or whether they constitute a proper protection of the Respondents' reputational interests. Those are matters reserved for determination in the substantive appeals. To pronounce conclusively upon them now would risk prejudging the very issues that fall for appellate determination. 7. Nevertheless, the Court cannot ignore that the appeals directly challenge the legal propriety of the interlocutory injunctions presently in force. If the subordinate court proceedings are permitted to proceed to conclusion while those interlocutory orders continue to regulate the conduct of the parties, there exists a real possibility that the appellate determination on the propriety of those orders may be substantially overtaken by events. The practical value of the appeals would thereby be considerably diminished. 8. The Court of Appeal in ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others***(supra) observed that an appeal is rendered nugatory where the success of that appeal would be of no practical benefit because events have overtaken the issues in dispute. Likewise, in ***Butt v Rent Restriction Tribunal(supra)***, the Court emphasized that judicial discretion should be exercised in a manner that preserves the efficacy of the appellate process. 9. The Respondents have correctly reminded this Court that litigation should ordinarily proceed without interruption and that parties are entitled to have their disputes determined expeditiously. I entirely agree. Indeed, **Article 159(2)(b) of the Constitution** enjoins courts to ensure that justice shall not be delayed. Courts must therefore be slow to halt proceedings before subordinate courts except where compelling reasons have been demonstrated. 10. However, the constitutional command for expeditious disposal of cases cannot be considered in isolation. It must equally be balanced against the equally important principle that litigants should enjoy a meaningful right of appeal where such right is provided by law. A right of appeal that is rendered merely theoretical by subsequent events cannot be said to be an effective right. 11. In the peculiar circumstances of this case, I am persuaded that allowing the subordinate court proceedings to proceed while the interlocutory orders continue in force presents a genuine risk of undermining the effectiveness of the pending appeals. The appeals challenge the very foundation upon which the interlocutory orders were issued. If the proceedings were to advance substantially before those questions are resolved, the appellate court's eventual determination may have only limited practical significance. 12. I also bear in mind that the hearing before the subordinate court had already been scheduled, and absent intervention by this Court, there exists a real likelihood that the suit could progress considerably before the appeals are heard. While that fact alone would not justify a stay, it reinforces the need to preserve the subject matter of the appeals where the circumstances otherwise warrant intervention. 13. At the same time, I must weigh the prejudice likely to be occasioned to the Respondents should the orders sought be granted. Undoubtedly, a stay of proceedings delays the determination of their claim. Such delay is not insignificant and should not be lightly imposed. Nevertheless, I am satisfied that the prejudice occasioned by a temporary suspension of the proceedings pending determination of the appeals can adequately be ameliorated by directing that the appeals be fast-tracked for hearing on a priority basis. 14. Conversely, should the stay be declined and the proceedings substantially progress before the appeals are determined, the prejudice to the appellate process may not readily be undone. In those circumstances, I am persuaded that the balance of justice tilts, albeit narrowly, in favour of preserving the status quo pending the determination of the consolidated appeals. 15. I therefore find that, in the peculiar facts of this matter, the Appellants have demonstrated sufficient prejudice and have shown that refusal to grant a stay carries a real risk of diminishing the practical efficacy of the pending appeals. Consequently, the interests of justice favour the grant of an order staying further proceedings before the subordinate court pending the hearing and determination of the consolidated appeals. 16. Having reached that conclusion, I now turn to the final question, namely, whether this Court should also grant a stay of execution and enforcement of the interlocutory orders issued by the subordinate court and, if so, upon what terms. This issue will be addressed in the final part of this ruling together with the dispositive orders. **Whether the Court should grant a stay of execution and enforcement of the impugned orders and the appropriate reliefs** 1. Having found that the Appellants have established an arguable appeal, demonstrated sufficient cause for the grant of a stay of proceedings, and shown that the balance of justice favours preserving the efficacy of the appellate process, it remains for this Court to determine whether the circumstances equally justify the grant of a stay of execution and enforcement of the ruling and orders delivered by the subordinate court on 5th June, 2025. 2. The Respondents have urged this Court to decline the prayer for stay of execution on the basis that the impugned orders merely preserve the status quo by restraining the publication of statements alleged to be defamatory pending trial. They contend that the orders are negative in nature and are intended solely to protect their reputational interests until the suit is heard and determined. 3. Conversely, the Appellants submit that the impugned orders are not merely preservatory. Their contention is that the orders continue to regulate their conduct by restraining expression on matters they consider to be of legitimate public interest. They argue that unless the enforcement of those orders is suspended pending appeal, the appeals themselves would be rendered largely academic because the very restraint complained of would continue throughout the pendency of the proceedings. 4. This Court is alive to the principle that the grant of stay of execution is a discretionary remedy whose purpose is to preserve the subject matter of litigation pending appeal. As was stated by the Court of Appeal in ***Butt v Rent Restriction Tribunal(supra)***, the discretion should be exercised in such a manner as not to prevent an appeal while at the same time ensuring that the successful litigant is not unnecessarily deprived of the fruits of a lawful order. 5. The Court is equally guided by the decision of the Court of Appeal in [***Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/94/eng%401986-07-02)where it was emphasized that the jurisdiction to grant stay exists to ensure that a successful appeal is not rendered illusory. 6. I have carefully considered the nature of the orders issued by the subordinate court. Those orders continue to operate pending the hearing and determination of the suit and remain binding upon the Appellants. More importantly, it is the legality, scope and propriety of those very orders that constitute the principal subject of the pending appeals. 7. In those circumstances, I take the view that granting a stay of proceedings while leaving the impugned interlocutory orders fully operational would only partially preserve the subject matter of the appeals. The appeals challenge not only the continuation of the proceedings but also the continued enforcement of the interlocutory injunctions. To stay one while leaving the other intact would not fully achieve the objective of preserving the substratum of the appeals. 8. The Court is nevertheless conscious that interlocutory injunctions are ordinarily issued to protect rights pending trial and that suspending such orders is not a matter to be undertaken lightly. It is therefore necessary to carefully balance the competing prejudice likely to be suffered by each side. 9. On one hand, the Appellants contend that continued enforcement of the impugned orders constitutes an ongoing limitation upon rights which they assert are constitutionally protected. On the other hand, the Respondents contend that suspension of those orders exposes them to continued publication of statements which they maintain are defamatory and injurious to their reputation. 10. This Court does not consider it appropriate, at this interlocutory stage, to determine whose position is ultimately correct. That inquiry falls squarely within the province of the substantive appeals. The Court's concern at this stage is confined to ensuring that neither party gains an unfair procedural advantage before the legality of the impugned ruling is authoritatively determined. 11. Having weighed those competing considerations, I am satisfied that the interests of justice would best be served by preserving the status quo that will enable the appeals to be heard without either party suffering prejudice incapable of being remedied by the appellate court. In my view, this is one of those exceptional cases in which both the proceedings before the subordinate court and the enforcement of the impugned interlocutory orders ought to be temporarily held in abeyance pending the determination of the appeals. 12. I am fortified in this conclusion by the constitutional obligation imposed upon this Court under **Articles 23, 48, 50 and 159 of the Constitution** to administer justice in a manner that is fair to all parties while safeguarding the efficacy of the appellate process. The grant of stay in the present circumstances should therefore not be understood as expressing any opinion regarding the correctness or otherwise of the ruling delivered by the learned trial magistrate. Rather, it reflects this Court's considered view that the interests of justice are best served by preserving the matters in controversy until the appeals are heard and determined. 13. It is also important to emphasize that the orders granted herein are purely interlocutory. The Respondents shall have a full opportunity to defend the impugned ruling during the hearing of the appeals, while the Appellants shall equally bear the burden of demonstrating that the learned trial magistrate fell into error. Nothing contained in this ruling should therefore be construed as predetermining any issue that properly falls for determination in the appeals. 14. Finally, bearing in mind that the grant of stay inevitably delays the determination of the suit before the subordinate court, it is incumbent upon this Court to ensure that the appeals are prosecuted expeditiously. The Appellants, having sought and obtained the equitable relief of stay, bear a corresponding obligation to ensure that the appeals are prepared and prosecuted without delay. Should there be unnecessary inactivity in prosecuting the appeals, nothing shall preclude the Respondents from moving this Court for appropriate directions, including the discharge or variation of the stay orders. 15. In the result, and for the foregoing reasons, I am satisfied that the consolidated applications are merited. The final dispositive orders shall therefore reflect that finding. **Disposition** 1. Ultimately, the grant of an order for stay of proceedings and stay of execution remains an exercise of judicial discretion. Like all judicial discretions, it must be exercised judiciously, on sound legal principles and upon a careful evaluation of the peculiar facts and circumstances of each case. It must neither be exercised capriciously nor in a manner that unnecessarily impedes a litigant's constitutional right to have his dispute heard and determined expeditiously. 2. Having carefully considered the pleadings, the rival affidavits, the written submissions by learned counsel, the authorities cited, and the applicable law, I am satisfied that the Appellants have established that the consolidated appeals raise bona fide and arguable issues deserving consideration by this Court. The appeals challenge, among other matters, the propriety of the interlocutory injunctive orders issued by the subordinate court, the principles applied by the learned trial magistrate in granting those orders, and the interplay between the constitutional guarantees of freedom of expression and the protection of reputation in the context of interlocutory relief in defamation proceedings. 3. I am equally persuaded that the present applications disclose exceptional circumstances warranting this Court's intervention. Unlike the ordinary interlocutory appeal, the appeals herein are directed at orders that continue to regulate the conduct of the Appellants throughout the pendency of the suit. Whether those orders were properly issued is the central question awaiting determination before this Court. Allowing the proceedings in the subordinate court to continue while those issues remain unresolved presents a real likelihood that the appellate process may be substantially undermined or deprived of much of its practical utility. 4. Although the Respondents have urged the Court to prioritize the expeditious disposal of the suit before the subordinate court, I am satisfied that the temporary delay occasioned by the grant of stay is outweighed by the need to preserve the efficacy of the pending appeals. This is particularly so because the questions raised transcend the immediate interests of the parties and concern the proper exercise of judicial discretion in granting interlocutory injunctions in defamation proceedings where constitutional rights are implicated. 5. I hasten to emphasize that this Court has deliberately refrained from expressing any concluded opinion on the merits of the appeals. Whether the learned trial magistrate correctly exercised her discretion; whether the interlocutory injunctions satisfied the legal threshold applicable in defamation matters; whether the impugned publications were protected by any constitutional or common law defence; and whether the Respondents ultimately established a cause of action are all matters reserved exclusively for determination during the hearing of the substantive appeals. 6. This Court's intervention at this stage is therefore informed solely by the need to preserve the integrity of the appellate process and to ensure that the appeals, if successful, remain effective and are not rendered merely academic by subsequent developments before the subordinate court. 7. At the same time, I remain mindful that the Respondents equally possess a constitutional entitlement to have their dispute heard and determined without unreasonable delay. Consequently, the orders granted herein should not be understood as affording the Appellants an opportunity to delay the conclusion of the litigation. Having invoked this Court's equitable jurisdiction and obtained interlocutory relief, the Appellants bear a corresponding obligation to prosecute the consolidated appeals with utmost diligence and expedition. 8. In order to strike an appropriate balance between the competing interests of the parties, it is necessary that the appeals be fast-tracked for hearing. Such a course will ensure that the temporary suspension of the proceedings before the subordinate court does not occasion unnecessary prejudice to the Respondents while at the same time safeguarding the efficacy of the appellate process. 9. Accordingly, and for the foregoing reasons, I find merit in the consolidated applications. **Orders** 1. Consequently, I make the following orders: 2. ***The Notices of Motion dated 15th July, 2025, 21st July, 2025 and 20th August, 2025 are hereby allowed.*** 3. ***There shall be a stay of further proceedings in Milimani CMCC No. E5487 of 2024, Kenya Christian Professionals Forum & 2 Others v Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN) & 2 Others, pending the hearing and determination of the consolidated appeals.*** 4. ***There shall further be a stay of execution and enforcement of the ruling and the interlocutory injunctive orders issued by Hon. A. Nyoike, Senior Principal Magistrate, on 5th June, 2025 in Milimani CMCC No. E5487 of 2024, pending the hearing and determination of the consolidated appeals.*** 5. ***The Appellants shall file their record of appeal together with submissions within Thirty (30)days.*** 6. ***The Appellants shall ensure that all necessary steps towards the prosecution of the consolidated appeals are undertaken expeditiously and, in any event, within the timelines to be issued by the Deputy Registrar, failing which the Respondents shall be at liberty to apply for appropriate orders, including the discharge, variation or setting aside of the stay orders herein.*** 7. ***The costs of these applications shall abide the outcome of the consolidated appeals.*** 8. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF AUGUST 2026.** **HON. L. P. KASSAN** **JUDGE**