https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11527

Kenya Union of Post Primary Education Teachers (KUPPET) v First Assurance Company Ltd (Civil Appeal E009 of 2025) [2026] KEHC 11527 (KLR) (Commercial and Tax) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11527 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Appeal E009 of 2025 F Gikonyo, J July 23, 2026 Between Kenya Union Of Post Primary Education Teachers (Kuppet) Appellant and First Assurance Company Limited Respondent Ruling Stay of proceedings pending appeal 1.The significant order sought in the notice of motion dated 17.3.2025 is stay of proceedings in the Chief Magistrate’s Court at Milimani in COMMSU/E336/2023 pending the hearing and determination of the appeal. 2.The application is made primarily under Order 42 Rules 2 and 6 of the Civil Procedure Rules. It is supported by affidavits sworn by Titus Misori Akello, the applicant’s secretary general on 17.3.2025 and on 21.5.2025. It is also supported by written submissions dated 8.10.2025 and 1.12.2025. 3.The gist of the application is that unless the stay of proceedings is granted, the appellant stands to be prejudiced as its application for leave to issue and serve a third-party notice was declined. 4.The appellant faulted the magistrate for declining its application based on the finding that the contract had been signed by it even before hearing the parties. 5.The appellant relied on several authorities. Among them, DHL Worldwide Express Kenya Ltd v Mutuma [2023] KECA 318 (KLR) to assert that an arguable appeal does not have to succeed, it only needs to raise an issue worth considering; Njoka v Kamere t/a Kiarie Kamere & Co. Advocates [2022] KEHC 10572 (KLR) on considerations before the court can exercise its discretion to issue a third party notice; Humphrey Mbaka Nandi t/a Nyati Distillers Limited v Equity Bank (K) Ltd & others [2018] KEHC 5796 (KLR) on the principle that the court is not to deal with the merits of the case at this stage; Rotich & another v Mibei [2003] KEHC 19242 (KLR) on the meaning of an appeal being rendered nugatory. Response 6.The respondent filed a replying affidavit sworn by its assistant legal manager, Kevin Kitavi on 24.4.2025 and written submissions dated 17.11.2025. 7.The respondent contended that both the application and appeal are groundless, frivolous, vexatious and that the appellant’s intention is to scuttle the progress of its suit before the lower court. 8.The respondent asserted that the court’s power to grant stay of proceedings ought to be exercised sparingly. It argued that the appellant has not demonstrated a basis upon which the court can exercise this discretion. 9.The respondent highlighted the course of the matter before the trial court. It commenced the suit under section 10 (4) of the Insurance (Motor Vehicle Third Party Risks) Act, seeking declaration that it was entitled to avoid or cancel the insurance policy between the parties as there was material non-disclosure that the appellant’s insured motor vehicle was not to be used for carriage or hire. 10.The respondent argued that the trial court correctly rejected the appellant’s application for joinder of its Kericho Branch as a third-party notice as it had already found that it was the appellant that entered the insurance contract, not the Kericho Branch; that the trial court had already pronounced itself on that issue upon the appellant’s earlier application seeking to be struck out from the suit and that it did not appeal the trial court’s earlier finding. 11.The respondent relied on a plethora of authorities. The prominent cases include Kenya Wildlife Service v James Mutembei [2019] eKLR on the gravity and seriousness of stay of proceedings; Kenya Power & Lighting Company Ltd v Esther Wanjiru Wokabi [2014] eKLR on the principles for consideration in determining whether to grant stay of proceedings and Balozi Housing Co-operative Society Limited v Captain Francis E. K. Hinga [2012] eKLR on the overriding objective to administer justice efficiently through timely disposal of proceedings. Analysis and Determination 12.The issue before the court is whether stay of proceedings pending appeal should be granted. 13.The court has the discretion to stay proceedings pending appeal. Order 42 Rule 6 of the Civil Procedure Rules. 14.The discretion ought to be exercised judicially in the interests of justice.The discretion also ought to be exercised sparingly and only in exceptional cases, as observed in Halsbury’s Law of England, 4th Edn. Vo. 37 page 330 and 332 and Christopher Ndolo Mutuku & another v CFC Stanbic Bank Limited [2015] KEHC 6751 (KLR) 15.The guiding principles for consideration were summarized by this court in Lucy Waithera Kimanga & 2 others v John Waiganjo Gichuri [2015] KEHC 6120 (KLR) as follows: -“a.The decision 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.b.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.c.In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order.d.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.” Timeous application 16.The subject application is dated 17.3.2025. The impugned ruling was issued on 13.12.2024. The application was filed about three months after the ruling. The application was filed without unreasonable delay. Arguable appeal 17.The subject matter of the appeal is the ruling dismissing the appellants’ application seeking to join its Kericho Branch as a third party. 18.Both sides presented their arguments as to whether the trial court was right in rejecting the appellant’s application. However, those arguments are for appeal. Prejudice 19.The appellant argued that unless the stay of proceedings is granted, the appellant stands to be prejudiced as its application for leave to issue and serve a third-party notice was declined. 20.On the other hand, the respondent submitted that the appellant would not be prejudiced if the suit proceeds. It argued that its suit before the trial court is declaratory and that it is incapable of indemnity or contribution by a third party. It further argued that the appeal would not be rendered nugatory if the proceedings were not stayed. 21.The respondent exhibited a copy of the plaint dated 22.3.2023 showing that the orders sought against the appellant are declaratory save for costs. 22.In any case, under the practice of third-party proceedings, the court may ‘order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct;’ Order 1 rule 22 of the Civil Procedure Rules. Meaning that there is no exceptional circumstances that may compel a stay of proceedings on the basis of this appeal whose subject matter is refusal of leave to issue a third party notice. 23.Therefore, I am not persuaded that the appellant stands to be prejudiced if the proceedings are not stayed pending the appeal. 24.I am also not persuaded that in the circumstances of this case, the appellant’s appeal will be rendered nugatory if the hearing of the case proceeds. Disposal 25.The application dated 17.3.2025 is dismissed with costs. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 23RD DAY OF JULY, 2026-----------------F. GIKONYO MJUDGEIn the presence of: -Mwenda for AppellantNgugi for RespondentCA- Aggrey