https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9860

MIO (Minor Suing through Mio Next Friend & Guardian) v Vinayak & 2 others (Civil Case 138 of 2013) [2026] KEHC 9860 (KLR) (Civ) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9860 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 138 of 2013 SN Mutuku, J June 24, 2026 Between MIO (Minor Suing through Mio Next Friend & Guardian) Plaintiff and Dr Sunil Vinayak 1st Defendant Dr Geoffrey Muiruri King'Ang'A 2nd Defendant and Millicent Adhiambo Interested Party Ruling The Application 1.The 1st and 3rd Defendants herein (the Applicants) have filed the Notice of Motion dated 23.04.2026 (the Motion) under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (CPA) and Order 42, Rule 6; Order 43, Rule 1; and Order 51 of the Civil Procedure Rules (CPR). The Motion is anchored on the grounds stated on its face and in the Supporting Affidavit sworn by the Applicants’ advocate, Musoma Hillary. 2.The Motion seeks to extend the order for stay of proceedings reinstated by this court on 27.01.2026, pending hearing and determination of Civil Appeal No. E162 of 2022 (Sunil Vinayak & Dr. Sunil Vinayak t/a Smile Africa Dental Clinic v Professional Conduct Committee & Medical Practitioners and Dentists Council) and Civil Appeal No. E163 of 2022 (Sunil Vinayak & Dr. Sunil Vinayak t/a Smile Africa Dental Clinic v Professional Conduct Committee & Medical Practitioners and Dentists Council) (the appeals) at the Court of Appeal as well as costs of the Motion. 3.In the Supporting Affidavit, it is deposed that on 19.01.2024 the court granted an order staying the proceedings herein, pending hearing and determination of the appeals. That thereafter, the order for stay was lifted on 22.05.2025 thereby giving leeway for the present suit to proceed, during pendency of the appeals. That, on 27.01.2026, the order for stay was reinstated by this court, vide a ruling delivered on that day in respect of the Applicants’ application dated 13.06.2025. That since the reinstatement of the order for stay, there has been no progress in the two appeals since directions are yet to be given by the Court of Appeal and that the Applicants have made follow-ups on the progress of the appeals, with the latest communication being that upon listing of the appeals, the parties would receive communication to that effect. 4.It is deposed that the appeals, once determined, will have a direct impact on the present suit, thereby necessitating the prayer sought in the Motion. That unless the instant Motion is allowed, the Applicants stand to suffer grave prejudice through a series of events beyond their control. That, no prejudice will befall the minor that cannot be compensated by an award of costs. 5.For those reasons, the advocate has urged the court to exercise its discretion in favour of the Applicants, by allowing the Motion as prayed. The Replying Affidavit 6.To oppose the Motion, the Respondent, through his guardian and next friend, MIO, has sworn a Replying Affidavit dated 6.05.2026 in which it is deposed that the instant Motion not only constitutes an abuse of the court process, but that it is made in total disregard of the plight of the Respondent herein. That it is now 10 years since the suit was instituted and yet the Plaintiff is yet to be heard on his case. That the issues arising in the appeals are distinct from those arising in this matter, hence the outcome thereof will in no way impact the present suit. 7.It is also the Respondent’s deposition that the Applicants have not demonstrated any proactive steps they have taken in prosecuting the appeals and that the letter dated 7.04.2025 annexed to the Motion was drafted over one (1) year ago, with no evidence of any subsequent communication from the Court of Appeal. That since the reinstatement order was made by this court, the Applicants have not demonstrated any diligent efforts taken in following up on the matter. 8.On the subject of prejudice, the deponent has stated that contrary to the averments made in the Motion, the Plaintiff’s health has suffered and continues to suffer greatly due to the prolonged nature of the present suit and that no award of damages or costs would adequately restore his health. 9.He has further stated that to grant an extension of time to the Applicants would only serve to further encourage their lack of diligence in pursuing the appeals. 10.The Respondent has urged this court to dismiss the Motion with costs. 11.Millicent Adhiambo (the Interested Party) has similarly sworn a Replying Affidavit on 4.05.2026, echoing the averments made on behalf of the Respondent and adding that the delaying tactics on the part of the Applicants is denying the Respondent and his family closure. That, the instant Motion is both procedurally defective and unjust to the Respondent. That no serious efforts have been demonstrated by the Applicants, in prosecuting the appeals and that the Applicants have not presented any evidence supporting the averment that they have been following up on the progress of the said appeals. Parties’ Submissions 12.The Motion was canvassed through written submissions. In support of the Motion, the Applicants have anchored their submissions on the decision in Harnam Singh v Mistri [1971] EA 122) on the inherent power of the court in staying proceedings, and the decision in Re: Global Tours & Travel Limited (2000) LLR on the principles for consideration in determining an application seeking a stay of proceedings and submitted that the instant Motion does not seek a fresh order for a stay of proceedings. Rather, it merely seeks an extension of the already existing order of stay and further that, the issue of the correlation between the issues arising in the appeals and the present matter was previously addressed by the court and ought not to be revisited at this juncture. 13.It was submitted that the interest of justice would best be served by extending the order of stay of the proceedings previously reinstated. That if the present suit proceeds during pendency of the appeals, the said appeals will be rendered nugatory. That on the flip side, if the order staying the proceedings herein is extended and the appeals are finally determined, the Respondent will be at liberty to proceed with prosecution of the suit. 14.The Applicants relied on Agatha Jeruto Kimaswai v Attorney General & 3 others [2021] eKLR where it was held that proceeding with a matter when there was a pending appeal arising therefrom would constitute a waste of judicial time; and the case of Port Florence Community Health Care v Crown Health Care Limited [2022] KEHC 2848 (KLR) in which the court reasoned that a stay of proceedings ought to be granted where it is evident that an appeal may be rendered nugatory and futile if the stay is denied. 15.The Applicants have similarly referred the court to the ruling of this court delivered on 19.01.2024, where the court reasoned that unless a stay is granted, it is more likely than not that the appeals would be rendered nugatory. 16.On the issue of prejudice, it is the Applicants’ joint contention that any prejudice which will befall the Respondent can be mitigated through a setting of strict timelines in granting a stay of proceedings. That, in contrast, the prejudice that will befall the Applicants if the extension order sought is denied, is grave and irreversible. 17.They submitted that the delay in prosecuting the respective appeals is through no fault of their own and that they cannot be blamed for the administrative functions at the Court of Appeal, in terms of listings and dates. The Applicants have maintained that upon delivery of the letter dated 7.04.2025 requesting for a hearing date, their advocates attended the Court of Appeal registry on 22.04.2026 where they were informed that they would receive communication once a hearing date has been set. 18.In that regard, the Applicants have urged the court to be guided by the decision in Charo v Mwashetani & 3 others [2014] KESC 41 (KLR) to support their arguments. 19.In opposing the Motion, the Respondent has firstly reiterated the averments made in reply thereto, that the nature of proceedings in the appeals have no bearing to the present suit and hence do not necessitate the prayers sought. That the respective appeals arose from judicial review proceedings, while the present suit is based on a medical negligence claim. That the courts have previously drawn a distinction between judicial review matters and claims founded on tort, including the case of Republic v Kenya Revenue Authority Exparte Yaya Towers Limited [2008] KEHC 489 (KLR) where the Court of Appeal held that judicial review is not a means through which a determination can be made on private law rights. 20.The Respondent has equally reiterated the averments that the Applicants have failed to demonstrate diligence in prosecuting the appeals and should therefore be held liable for the prolonged delay in the matter. That it has been over three (3) months since the stay order was reinstated and yet the Applicants have not shown the specific steps taken in following up on their appeal. 21.To buttress his position, the Respondent has urged the court to consider the case of CMC Holding Limited v Nzioki [2004] KECA 143 (KLR) in which the Court of Appeal held that an applicant who does not actively pursue his or her appeal is not deserving of an order for stay. 22.The Respondent submitted that he will be prejudiced if the orders sought are granted as there is a likely risk of loss of evidence and witnesses and that a miscarriage of justice will occur since the Respondent will be denied his right to receive a fair hearing under Article 50 of the Constitution. 23.Ultimately, it is the Respondent’s submission that granting the extension of the order for stay will not be in the best interest of justice. 24.The Interested Party has anchored her submissions on the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) and the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR) on the pertinent factors in granting a stay of proceedings. She has associated herself with the arguments of the Respondent, that the cause of action in the present suit differs from that arising in the appeals and hence, a stay of proceedings or extension thereof is unnecessary; that granting a further stay of proceedings would continually deny the Respondent access to care and medical treatment, further jeopardizing his health and well-being and that it is unfair for the Applicants to argue that no prejudice will befall the Respondent if the order is extended. 25.The Interested Party has submitted, further, that the Applicants herein have not demonstrated the actual steps taken in following up on or prosecuting the appeals and that no actionable steps have been shown by the Applicants since the reinstatement of the order. 26.In conclusion, the Interested Party has contended that the Applicants have so far benefited from an order staying the proceedings followed by a reinstatement of such stay, and yet there has been no progress in the appeals. 27.On the basis of those submissions, that the Interested Party has urged that the instant Motion be dismissed with costs, to pave the way for the hearing of the suit. Analysis and determination 28.I have considered the Motion, the Replying Affidavit in opposition and rival submissions of the parties as well as the authorities relied on by the parties. 29.I have read the record of the court. I have noted that on 19.01.2024, this Court considered an application (Notice of Motion) dated 02.12.2020, seeking stay of the proceedings in this matter pending hearing and determination of an application for review and/or appeal in Judicial Review Misc. Application No. 29 of 2019. 30.This Court allowed that application and granted limited stay of the proceedings in this matter pending the hearing and determination of the two appeals before the Court of Appeal. The Court clarified that the order for stay would remain in force for a period of nine (9) months from 19.01.2024. 31.The record shows that on 22.10.2024, parties herein entered a consent extending the order staying the proceedings in this matter from that date to 05.05.2025. The matter did not proceed on 05.05.2025. It was fixed for 22.05.2025 on which date the 1st and 3rd defendants, through their counsel, informed the court that the appeals were yet to be determined. They sought extension of the orders for stay but this was declined by this court through a ruling delivered on 26.05.2025 32.The applicants filed the Notice of Motion dated 13.06.2025 seeking review/setting aside of the orders of 26.05.2025, which application was allowed for another 60 days or until the determination of the two appeals pending at the Court of Appeal, whichever preceded the other. At the lapse of 60 days, the two appeals had not been determined. 33.I have considered submissions by the parties supporting and opposing the application. The applicants are relying on a letter dated 7.04.2025 annexed to the instant Motion and marked as “MH-1”. It was written by the Applicants’ firm of advocates, addressed to the Deputy Registrar-Court of Appeal, requesting for a hearing date in respect of the appeals. It remains unclear whether this letter elicited any response. That letter is one year old. I have not seen any other evidence to support any efforts on the part of the Applicants in seeking a hearing date of the two appeals. Further, it has not been demonstrated whether the Registrar, Court of Appeal gave any feedback regarding the appeals. 34.In view of all the foregoing circumstances therefore, I find that the applicants have not demonstrated any proactive steps taken by them in pursuing or prosecuting the appeals, since the order reinstating the stay of proceedings was issued by me on 27.01.2026. Consequently, it is my considered view that no sufficient reasons have been placed before this court to persuade me to exercise my discretion in favour of further extending the order for stay of these proceedings. Accordingly, I hereby proceed to dismiss the Notice of Motion dated 23.04.2026 for want of merit, with costs to the Respondent. 35.Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 24TH DAY OF JUNE, 2026.S. N. MUTUKUJUDGE