https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12789

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **CIVIL CASE NO. E206 OF 2021** **LAILA SHAMSUDEEN NIMJI (Suing as the Personal Representative and Executrix of the Estate of the late Shamsudeen Nimji) ……………………………………………. PLAINTIFF** **VERSUS** **PIONEER HOLDINGS (AFRICA) LIMITED …..… 1ST DEFENDANT** **PIONEER INVESTMENT COMPANY LTD ..…..…2ND DEFENDANT** **RULING** 1. Before this Court for determination is the Defendants’ Notice of Motion dated 7th November, 2025, seeks an order that all further proceedings in this suit be stayed pending the hearing and determination of Nairobi Court of Appeal Civil Appeal No. E727 of 2025, arising from the ruling and order delivered on 4th October, 2024, in Nairobi High Court Succession Cause No. 43 of 2004. Costs of the application are sought to be in the cause. 2. The application is supported by an affidavit sworn by a director of the 1st Defendant company. The Defendants contend that the Plaintiff instituted the present suit in her capacity as the Executrix and Personal Representative of the Estate of the late Shamsudeen Nimji pursuant to a Grant of Probate issued on 4th February, 2020. They argue that the Plaintiff’s locus standi is dependent on the validity of that grant, which is presently the subject of proceedings before the Court of Appeal. 3. The deponent states that the Defendants have consistently challenged the Plaintiff’s capacity to maintain the suit and have pleaded that she lacks the requisite locus standi. He depones that the Plaintiff’s brother filed an application dated 26th February, 2024, in Succession Cause No. 43 of 2004 seeking revocation of the grant. Although the application was dismissed by Hon. Lady Justice C. Kendagor in a ruling delivered on 4th October, 2024, an appeal, namely Nairobi Court of Appeal Civil Appeal No. E727 of 2025, was subsequently lodged against that decision. 4. According to the Defendants, the outcome of the appeal will have a direct bearing on the present suit. They contend that should the Court of Appeal ultimately revoke the grant, the Plaintiff would lose the legal capacity to prosecute the proceedings, thereby vindicating their defence on locus standi. They further argue that allowing the suit to proceed before the appeal is determined may result in the matter being heard and concluded only for the proceedings to be subsequently rendered a nullity. On that basis, they urge the court to stay further proceedings pending the determination of the appeal. 5. The Plaintiff opposed the application through Grounds of Opposition dated 18th November, 2025. She contends that the suit is already part-heard, her witness having testified in October 2023, and that the application represents a second attempt by the Defendants to delay the hearing on account of proceedings in the probate court. She further relies on the ruling of Hon. Justice C. Kendagor delivered on 4th October 2024, which dismissed the application for revocation of the grant and observed that the applicant therein would suffer no prejudice if the Plaintiff continued administering the estate. 6. The Plaintiff also challenges the competence of the appeal relied upon by the Defendants, contending that no leave to appeal was sought or obtained. She further points out that the dispute forming the subject matter of this suit dates back to 1998 and has remained unresolved for over twenty-five years. In her view, further delay would be contrary to the interests of justice. 7. Additionally, the Plaintiff maintains that her duties as executrix cannot be suspended merely because her appointment is under challenge. She submits that a stay of proceedings is a drastic remedy which should be granted only in clear and exceptional circumstances, and that the Defendants have failed to demonstrate sufficient grounds warranting such an order. 8. The application was canvassed by way of written submissions. ***Applicant’s Submissions*** 1. The Defendants submit that this Court has inherent jurisdiction to stay proceedings where the interests of justice so require and rely *on* ***Jadva Karsan v Harnam Singh [1953] 20 EACA 74, Harman Singh & Others v Mistri [1971] EA 122,*** and ***Tatu City Limited & Another v Tajbhai Bhalla Advocates LLP [2022] eKLR.*** 2. The Defendants contend that sufficient cause exists for the grant of a stay because the Plaintiff’s capacity to maintain this suit is directly dependent upon the validity of the grant issued to her on 4th February, 2020. They submit that the shares which form the subject matter of the suit belonged to the deceased and not to the Plaintiff personally, and that she can only prosecute the claim in her capacity as the lawful personal representative of the estate. They further point out that the issue of the Plaintiff’s locus standi was specifically pleaded in the Defendants’ respective Defences dated 14th October, 2021, and therefore remains a live issue for determination. 3. The Defendants further rely on this Court’s ruling delivered on 4th October, 2024, in which the Court observed that the Plaintiff derives her locus standi from the Grant issued and that the validity of that grant had been challenged in the succession proceedings. They submit that although the application for revocation of the grant was dismissed, the matter is now before the Court of Appeal and remains unresolved. According to the Defendants, if the appeal succeeds and the grant is revoked, the Plaintiff would lose the legal capacity to prosecute the suit, thereby rendering the proceedings incompetent and vindicating their defence on locus standi. 4. It is further submitted that the outcome of Nairobi Court of Appeal Civil Appeal No. E727 of 2025 will therefore have a direct and substantial bearing on this suit. The Defendants argue that proceeding with the hearing before the appeal is determined may result in a waste of judicial time and resources, particularly if the suit is heard and determined only for the Plaintiff’s grant to be subsequently revoked. In support of that position, they rely on ***Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR****.* 5. The Defendants also contend that they stand to suffer prejudice if the proceedings continue, as they would be deprived of what they consider to be a central aspect of their defence. Conversely, they argue that the Plaintiff has not demonstrated any prejudice incapable of being compensated by an award of costs. They further submit that the application was brought promptly upon becoming aware of the appeal and cannot therefore be said to have been delayed. 6. In their supplementary submissions, the Defendants reiterate that the outcome of the appeal will directly affect the question of the Plaintiff’s legal capacity to continue with the suit. They argue that unless a stay is granted, the matter may proceed to conclusion and judgment before the Court of Appeal determines the validity of the grant, thereby occasioning unnecessary expenditure of judicial time and resources. They accordingly urge the Court to allow the application. ***Plaintiff’s/Respondent Submissions*** 1. The Plaintiff submits that the Defendants have failed to satisfy the legal threshold for the grant of a stay of proceedings. According to the Plaintiff, a stay of proceedings is a grave judicial intervention that interferes with a litigant’s right to prosecute a claim, the constitutional right of access to justice, and the right to have disputes determined without unreasonable delay. 2. In support of that position, the Plaintiff relies on ***William Odhiambo Ramogi & 3 Others v Attorney General & 6 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR****,* where the Court identified the factors to be considered in an application for stay of proceedings, including the existence of an arguable appeal, whether the appeal would be rendered nugatory in the absences of the stay, the presence of exceptional circumstances, and whether the application has been brought expeditiously. She also relies on ***BM Logistics Ltd v Kenya National Bureau of Statistics & Another [2013] eKLR***and submits that the Defendants have not met the requisite threshold. 3. The Plaintiff further submits that the present suit is being prosecuted for the benefit of the estate as a whole. She relies on the findings of the Succession Court in the ruling delivered on 4th October, 2024, wherein the application for revocation of the grant was dismissed and the Court found that no prejudice would be occasioned if the Plaintiff continued administering the estate. According to the Plaintiff, those findings demonstrate the absence of any basis for halting the proceedings herein. 4. The Plaintiff also argues that even if the Court of Appeal were ultimately to revoke the grant, such revocation would not necessarily terminate the present proceedings. Rather, the suit could continue through any person subsequently appointed as executor or administrator of the estate. She therefore maintains that the pending appeal does not justify a stay of the proceedings. 5. In conclusion, the Plaintiff submits that the Defendants have failed to demonstrate exceptional circumstances warranting the exercise of the Court’s discretion in their favour. She accordingly urges the Court to dismiss the application with costs. ***Analysis and Determination*** 1. Having considered the Notice of Motion, the supporting affidavit and annexures thereto, the Grounds of Opposition, and the parties' respective submissions, the sole issue falling for determination is: **Whether the Defendants have established sufficient grounds to warrant an order staying further proceedings in this suit pending the hearing and determination of Nairobi Court of Appeal Civil Appeal No. E727 of 2025.** 2. A stay of proceedings is a drastic and exceptional remedy as it arrests the hearing of a pending matter and delays the determination of the parties' substantive rights. Such an order directly implicates the constitutional imperative that justice shall not be delayed under Article 159(2)(b) of the Constitution, as well as the right to a fair hearing guaranteed under Article 50(1). For that reason, courts have consistently held that the jurisdiction to stay proceedings must be exercised sparingly, cautiously and only where the interests of justice overwhelmingly demand it. 3. The court must therefore balance competing considerations, namely the need for expeditious disposal of litigation on the one hand, and the need to prevent proceedings from being rendered futile or inconsistent with the outcome of other litigation touching on a foundational issue on the other. The principles guiding the exercise of that discretion are settled. In **Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000**, Ringera J. (as he then was) observed that whether or not to grant a stay of proceedings is a matter of judicial discretion to be exercised in the interest of justice. That in all cases the sole question is whether it is in the interest of justice to grant an order staying the proceedings. 4. In addressing the question, the court should weigh the pros and cons of granting or not granting the order, bearing in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, whether the appeal is an arguable one, the scarcity and optimum utilisation of judicial time and whether the application has been brought expeditiously. These principles were reiterated in **Tatu City Limited & Another v Tajbhai Bhalla Advocates LLP [2022] eKLR** and **William Odhiambo Ramogi & 3 Others v Attorney General & 6 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR.** 5. From those authorities, the relevant considerations may be summarized as; whether the appeal raises arguable and serious triable issues; whether refusal of a stay would render the appeal or subsequent proceedings nugatory; whether the application has been brought promptly and in good faith; and whether prejudice would be occasioned to a party, the Respondent in this case. 6. On whether the appeal raises arguable and serious triable issues, the applicant's case is that the Plaintiff's capacity to maintain these proceedings is entirely dependent upon the grant issued on 4th February, 2020, and that the validity of that grant is presently under challenge before the Court of Appeal. They argue that if the appeal succeeds and the grant is revoked, the Plaintiff would lose the legal authority to continue prosecuting this suit. 7. I have perused the Record of Appeal and the Memorandum of Appeal exhibited before the court. The appeal challenges, among other things, the learned Judge's findings on matters touching upon the issuance of the Grant and the dismissal of the summons for revocation. Without expressing any view on the merits of the appeal, I am satisfied that the issues raised cannot be dismissed as frivolous. They concern the validity of the grant from which the Plaintiff derives her authority as personal representative of the estate. To that extent, I find that the appeal raises arguable issues. 8. However, the existence of an arguable appeal does not automatically entitle an applicant to a stay of proceedings. An arguable appeal is only one factor among several that must be considered. The court must still determine whether the circumstances justify the staying of a pending suit. 9. The Defendants contend that unless proceedings are stayed, the suit may proceed to judgment before the Court of Appeal determines the challenge to the grant. They argue that if the appeal subsequently succeeds, the proceedings herein may be rendered incompetent. I am unable to agree with that proposition. 10. The undisputed position is that the application for revocation of the Plaintiff's grant was dismissed on 4th October, 2024. Consequently, the grant remains valid, subsisting and fully operative. The Plaintiff therefore continues to enjoy legal authority to represent and administer the estate unless and until that position is altered by a competent court. 11. The Defendants' argument essentially invites this court to suspend proceedings because the Court of Appeal might arrive at a different conclusion at some future date. In my view, that approach would require the court to act on speculation rather than on the current legal position. The existence of an appeal is not, by itself, proof that the decision appealed from is erroneous or likely to be overturned. Until such time as the Court of Appeal interferes with the grant, this Court must proceed on the basis that the grant remains valid and effective. 12. Moreover, the Defendants have not demonstrated how the appeal itself would be rendered nugatory if these proceedings continue. The appeal concerns the validity of the Grant. That issue will remain available for determination by the Court of Appeal regardless of whether the hearing of this suit proceeds. The appellate court's jurisdiction and ability to determine the appeal will not be diminished, compromised or defeated by the continuation of these proceedings. 13. I also agree with the Plaintiff that the cause of action belongs to the estate and not to the Plaintiff in her personal capacity. Even if circumstances were to arise affecting the identity of the estate's personal representative, the law provides mechanisms through which estate litigation may continue without necessarily nullifying proceedings already undertaken. Consequently, the Defendants have not demonstrated that the continuation of the suit would render either the appeal or these proceedings nugatory. 14. As to whether the application has been brought promptly and in good faith; the Record of Appeal was lodged on or about 4th September, 2025, while the present application was filed on 7th November, 2025. The interval of approximately two months cannot be described as inordinate. I therefore find that the application was brought within a reasonable time. 15. Regarding whether the Defendant would suffer prejudice if compelled to defend a suit prosecuted by a person whose capacity remains under challenge. The court notes, that prejudice is contingent upon a future event, namely the success of the pending appeal. 16. By contrast, the prejudice to the Plaintiff is immediate and tangible. The dispute giving rise to these proceedings’ dates back to 1998. The suit itself was filed in April 2021 and has substantially progressed. The Plaintiff testified in October 2023 and the matter is already part-heard. Staying proceedings at this stage would halt a suit that is well advanced and postpone its determination for an uncertain period pending the conclusion of appellate proceedings whose hearing date is presently unknown. 17. The court must be guided by the overriding objective of facilitating the just, proportionate and expeditious resolution of disputes. Granting a stay in the circumstances of this case would undermine that objective and would effectively subordinate a part-heard suit to the mere possibility of a future appellate outcome. 18. Upon balancing the competing prejudice, I am satisfied that the prejudice likely to be suffered by the Plaintiff substantially outweighs the speculative prejudice apprehended by the Defendants. The interests of justice therefore favour allowing the suit to proceed. 19. In the final analysis, while the pending appeal raises arguable issues, the Defendants have failed to demonstrate that refusal of a stay will render the appeal nugatory, that exceptional circumstances exist, or that the interests of justice require the suspension of a part-heard suit. The threshold for the grant of a stay of proceedings has therefore not been met. 20. Accordingly, the Notice of Motion dated 7th November, 2025, is hereby dismissed with costs. 21. Orders accordingly. ***Delivered, Dated and Signed virtually this 6th day of August, 2026*** **RHODA RUTTO** **JUDGE** **Court Assistant: Wabwire**