https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3456

Mbugua v Kihara & another (Environment and Land Appeal E243 of 2025) [2026] KEELC 3456 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELC 3456 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E243 of 2025 JG Kemei, J June 5, 2026 Between Mathew Ngugi Mbugua Appellant and Daniel Kanyi Kihara 1st Respondent Peter Ngige Gacuru 2nd Respondent (In respect of the Appellant’s application dated 17/11/2025) Ruling Background 1.What is coming up for determination is the Appellant’s application dated 17/11/2025. The application is expressed to be anchored on the provisions of Order 42 Rule 6 of the Civil Procedure Rules. Substantively, the Appellant prays for orders that;a.Pending the hearing of the appeal herein, this Honourable Court be pleased to stay proceedings in ELC No. 422 of 2022 now pending at the subordinate Court-Milimani.b.Costs of this Application be provided for. 2.The application is premised on the grounds that the Appeal herein has overwhelming chances of success. Further that the matter before the Lower Court is likely to be concluded before the determination of the appeal herein. The application is further supported by the Appellant’s affidavit of even date. The Appellant avers that he instituted the suit in the Lower Court vide the Amended Plaint filed on 14/2/2024. He avers that the Respondents failed to enter appearance despite service. Consequently, the matter proceeded to formal proof and Judgment was entered on 26/9/2024. 3.The deponent avers that while in the process of executing the decree thereof, the Respondent moved the Court, vide the application filed on 17/12/2024 seeking to set aside the Judgment. He avers that the Respondent cited a wrong date of the Judgment as 12/5/2022 instead of 26/9/2024 which issue he raised in his Replying Affidavit but the Court ignored it. He states that the Judgment was subsequently set aside vide the Ruling delivered on 20/3/2025. 4.He avers that he then filed an application dated 25/3/2025 arguing that the Court had set aside a non-existent Judgment hence the Ruling was of no effect. Subsequently, the Court on its own motion corrected the error and set aside its Ruling of 20/3/2025. Unrelenting, the Respondent filed an application on 16/4/2025 seeking to reinstate the ruling delivered on 20/3/2025 and further amend the date of the Judgment. That the said application was however dismissed on 12/6/2025. 5.He states that the Respondent once again filed an application seeking to set aside the Judgment and a stay of execution. Contesting the application, he raised a preliminary objection arguing that the application was res judicata. A ruling in respect of the application was delivered on 21/10/2025 allowing the application. It is the said Ruling that is subject of this appeal. The Applicant therefore seeks a stay of proceedings in the lower Court pending determination of this appeal. The Respondents’ Replying Affidavit 6.The Respondents filed a Replying affidavit jointly sworn on 12/12/2025 in opposition to the Application. The deponents aver that the instant application is fatally defective and incompetent, and that the Appellant is a litigious person who has persistently rejected judicial outcomes and made unfounded allegations of misconduct against judicial officers. It is further contended that the prayer for stay of proceedings in lower Court is a delay tactic and that the Appellant has failed to demonstrate any justifiable reason to warrant the exercise of the Court’s discretion to stay proceedings. 7.The deponent deposes that the Respondents successfully set aside the default judgment entered against them on 26/9/2024 on condition that they pay throw away costs of Kshs. 20,000/=, failure to which the other order would lapse. That the ruling was challenged by the Appellant based on an alleged error in the motion’s reference to the date of judgment, leading to the setting aside of that conditional order without any formal application by the Appellant. 8.The deponent further avers that the Court later set aside the judgment and granted a stay of execution. However, the Appellant contested the decision vide a Preliminary Objection asserting that the application was res judicata. That the Court dismissed the preliminary objection and allowed the Respondents’ application to set aside the Judgment subject to payment of Kshs. 40,000/= as throw-away costs, which orders they have complied with. The Respondents argue that the Appellant seeks prejudicially to benefit from the default judgment and prevent the Respondent from being heard on merit. They therefore pray that the appeal and the notice of motion seeking stay of proceedings be dismissed with costs. The Appellant’s Further Affidavit 9.In his Further Affidavit sworn on 22/12/2025, the Appellant attaches a full copy of the judgment dated 26/9/2024. He further emphasizes that the Honourable Magistrate only corrected the order after perusing his application of 25/3/2025. Directions on the written submissions 10.The Court directed parties to file their submissions. Both parties complied. The Appellant/Applicant’s submission are dated 22/12/2025 whereas the Respondents’ submissions are dated 11/12/2025. The Court has read the submissions and duly considered them in its analysis and determination. Analysis and determination 11.I have considered the application, the rival affidavits thereto and the submissions filed in support thereof. The issues for determination which arise therefrom are: -a.Whether the Appellant/Applicant has met the threshold for grant of stay of proceedings of CMCC No. 422 of 2022.b.Who bears the costs of the application? Whether the Appellant/Applicant has met the threshold for grant of stay of proceedings of CMCC No. 422 of 2022 12.The law on stay of proceedings is provided for in Section 6 of the Civil Procedure Act to the effect that where an issue is directly and substantially in issue in proceedings between the same parties, another Court ought to stay its proceedings in respect of such suit. Stay of proceedings is further alluded to under Order 42 Rule 6(1). 13.In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, the Court held as follows;“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. 14.The 3 conditions to be met for stay of proceedings are; arguable appeal, sufficient cause and that the Application was filed timeously. The Applicant must demonstrate that he has an arguable Appeal with high chances of success such that if stay of proceedings is not granted the Appeal would be rendered nugatory. It is also important to note that stay of proceedings orders are issued at the discretion of the Court save to say that the unfettered powers should be exercised judicially and not capriciously at the whim of the Court. See the case of Kenya Wildlife Service –vs- James Mutembei [2019] eKLR. 15.Article 50 (1) of the Constitution provides for a fair trial including the right to have the trial begin and conclude without unreasonable delay. Therefore, proceedings ought to continue without interruption until the suit is determined. Stay of proceedings therefore ought to be sparingly granted and only in exceptional circumstances. 16.In the instant case, the Appellant is apprehensive that the matter before the Lower Court is likely to be concluded before the determination of the appeal herein. His contention is that the application was res judicata hence the Hon. Magistrate lacked jurisdiction to determine it. Without delving into the merits of the appeal and considering the Memorandum of Appeal filed herein, I note that the Appeal is premised on the issue of Res Judicata. The appeal is therefore arguable and whether or not it will succeed is not for this appellate court to determine at this juncture. 17.Further, noting that if the Appeal is allowed to proceed, its effect would touch on the jurisdiction of the trial Court in determining the suit; in the event the said proceedings are not stayed and the Appeal is allowed, the same would amount to a waste of judicial time and an academic exercise. 18.In Niazsons (K) Ltd v China Road & Bridge Corporation (Kenya) [2001] e KLR, the Court held that: -“Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay…should be granted.” 19.As regards delay in filing the Application, the Order and Proceedings sought to be appealed against were made on 21/10/2025 while the instant Application was filed on 17/11/2025, that is within 30 days. Accordingly, I find that the Application was filed timeously and without inordinate delay. 20.Furthermore, noting that running two parallel proceedings might embarrass the administration of justice as the two Courts might issue contradictory orders, it is in the interest of justice for the Court to exercise its discretion in favor of the Applicant and grant stay of proceedings as sought, pending determination of the instant Appeal. 21.Accordingly, the application dated 17/11/2025 is merited and allowed in the following terms: -a.An Order of Stay of Proceedings be and is hereby issued in CMCC No. 422 of 2022 and further the Court Order dated the 21/10/2025 is hereby suspended from taking of effect and implementation, pending the hearing and determination of the Appeal.b.That the Appellant is hereby directed to file the Record of Appeal within 30 days from the date of this ruling, in default the orders granted herein shall lapse.c.Costs of the Application to abide the Appeal. 22.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the Presence of:Appellant is present in personMr Onkangi for the RespondentsCA – Ms Kendi