https://new.kenyalaw.org/akn/ke/judgment/keca/2026/973

Morop Distributors (K) Limited v Maingi (Regent Automobile Valuers and Assessors Limited) & 5 others (Civil Appeal (Application) E418 of 2022) [2026] KECA 973 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 973 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E418 of 2022 JM Mativo, P Lilan & JO Okello, JJA May 15, 2026 Between Morop Distributors (K) Limited Applicant and John Gathama Maingi (Regent Automobile Valuers and Assessors Limited) 1st Respondent ………..……..…...Nairobi City County Government 2nd Respondent Job Kipnandi Chebon 3rd Respondent NK Brothers Limited 4th Respondent Attorney General 5th Respondent Step Ahead Limited 6th Respondent (Being an appeal against the ruling of the Environment and Land Court of Kenya at Nairobi (L. Mbugua, J.) dated 26th May 2022 in Milimani ELC Cause No.178 of 2009) Ruling 1.Morop Distributors (K) Limited (the applicant), by its application dated 5th December 2025 brought under rule 5 (2) (b) of Court of Appeal Rules, 2022, prays that this Court stays the proceedings in Milimani E.L.C. No.178 of 2009, Morop Distributors (K) vs. Nairobi City County Government (formerly City of Nairobi) & Others pending the hearing and determination of this appeal. The applicant also prays that the costs of the application be provided for. 2.The application is premised on the following grounds: (a) the applicant’s appeal touches on the issues pending before the trial court, hence the need to stay the proceedings pending the determination of the appeal; (b) the applicants are aggrieved by a ruling refusing them leave to amend their plaint and if the hearing proceeds, their appeal will be rendered nugatory; (c) the applicant’s application for stay before the trial court was refused; (e) the orders sought are necessary for fair administration of justice. 3.We heard the application virtually on 17th March 2026. In support of the application, the applicant’s counsel Ms Chisaro relied on her written submissions dated 22nd December 2025 in which she mainly argues that the application is merited and satisfies the threshold under rule 5 (2) (b) of the Court of Appeal Rules, 2022. In support of her aforesaid argument, counsel cited Stanley Kangethe Kinyanjui vs. Tonty Ketter & 5 Others [2013] KECA 378 (LKR) which underscored that an applicant under rule (2) (b) must demonstrate the existence of an arguable appeal, and, absent of stay, the appeal if successful will be rendered nugatory. Lastly, counsel urged this Court to exercise its discretion in favour of the applicant and grant the stay sought. 4.Mr. Omolo, the 1st respondent’s counsel confirmed that he had not filed submissions but he sought to rely on submissions he filed in respect of an application dated 25th January 2024. However, the said application and the submissions alluded to are not among the documents uploaded in this file. In any event, we do not understand the relevancy of submissions filed long before the instant application was filed. Nonetheless, Mr. Omolo argued that the applicant is abusing this Court by approaching “the two courts at the same time” with similar applications. He argued that the application to amend the plaint was brought after two years. 5.Ms Otieno holding brief for Mr. Koseo for the 2nd respondent informed the Court that he did not file any papers because the application does not affect the 2nd respondent. 6.Mr. Allan Kamau, counsel for the 5th respondent confirmed that he did not file submissions. However, he associated himself with Mr. Omolo’s submissions and drew the Court’s attention to the fact that the suit in the trial court has been pending for 18 years. Citing Meta Platforms, Inc & Ano. vs. Motaung & Ano.; Kenya National Humans Rights Equality Commission & 9 Others (Interested Parties) (Civil Appeal (Application) E232 of 2023) [2023] KECA 996 (KLR) (28 July 2023) (Ruling), he maintained that the applicant does not merit stay of proceedings because it has not demonstrated exceptional circumstances. 7.Mr. Odera Were, counsel for the 4th respondent concurred with Mr. Allan Kamau and Mr. Otieno. He also said he would rely on his written submissions. However, the said submissions are not in the e-file. The 3rd and 5th respondents did not participate in the application. 8.First, we will address Mr. Omolo’s contention that the applicant had also filed a similar application before the trial court, therefore, this application is an abuse of Court process. To our mind, this argument is legally frail and a clear misunderstanding of this Court’s jurisdiction under rule 5 (2) (b). This Court has consistently held that its jurisdiction under rule 5 (2) (b) is original and independent. Therefore, when the Court hears an application for a stay of execution, stay of proceedings or an injunction pending appeal, it is not sitting as an appellate court reviewing a lower court's discretion, but rather exercising its own primary discretion de novo. (Kenafric Matches Ltd vs. Match Masters Limited & Ano. [2021] KECA 188 (KLR). 9.In Githunguri vs. Jimba Credit Corporation Ltd (No. 2) [1988] KLR 838, a landmark authority for the "original jurisdiction" doctrine under rule 5 (2) (b) this Court clarified that even if a similar application for stay has been heard and rejected by the High Court (under order 42 rule 6 of the Civil Procedure Rules), this Court deals with a fresh application as a court of first instance. It exercises an independent discretion that is not an appeal from the trial judge's refusal. 10.Similarly, in Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR, this Court reaffirmed that in dealing with rule 5 (2) (b) applicants, it "exercises original jurisdiction" and must apply its mind de novo to the propriety of granting relief. It stated explicitly that this exercise does not constitute an appeal from the trial judge's discretion to that of the appellate judges. 11.First, we will address the question this being an application for stay of proceedings, whether the applicant has demonstrated exceptional circumstances. While rule 5 (2) (b) applies to both stay of execution and stay of proceedings, the Court is generally more cautious with the latter because stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case, therefore the general practice of the courts is that a stay of proceedings should not be granted, unless the proceedings beyond all reasonable doubt ought not to be allowed to continue. (See Halsbury’s Laws of England, 4th Edition. Vol. 37 at p.330 and p.332). 12.As was held by this Court in Meta Platforms, Inc & Another (supra), a balance must be maintained between the right of a party to have the substantive suit heard timeously and the desire of his opponent to be granted stay to prosecute his appeal. This Court in the above decision was emphatic that in granting an order of stay of proceedings, the Court should be guided primarily by the necessity to be fair to both parties and suggested the following considerations, though not exhaustive:a.A stay of proceedings can be granted only if there is a pending appeal, which is, prima facie, valid in law.b.The appeal, which forms the basis of an jurisdiction to entertain the application.c.Where the interlocutory appeal following an application for stay of proceedings will finally dispose of the case or put proceedings in the lower proceedings would be granted.d.Where the res will be destroyed, damaged or annihilated before the appeal is disposed of, an appellate court will grant stay.e.The Court of Appeal would be reluctant to grant an application for stay of proceedings if it would cause greater hardship than if the application were refused.f.A stay of proceedings will be granted where to do otherwise will tend to render any order of the appellate court nugatory. 13.The applicant has already filed its appeal against the ruling dated 26th May 2022 in which the learned judge dismissed its application seeking to amend its plaint. The critical question here is what legal ramifications will result if the stay sought is refused. Absent of stay, the trial court will proceed to determine the primary suit between the parties. The applicant will be forced to proceed on the basis of its original plaint. Its amended plaint will be locked out completely. The effect is that the doors of justice will have been closed for the applicant to present his amended claim. In the event of the appeal succeeding, the success will be an exercise in futility because the primary suit will have been determined and it is constitutionally guaranteed right to have a dispute determined by a court will have been violated. On the other hand, if the applicant’s appeal fails, the proceedings before the trial court can proceed from where they had reached and any loss occasioned by the delay, can be compensated by an award of costs. Accordingly, we are persuaded that the applicant has satisfied the exceptional circumstances requirement test. 14.We will now consider whether the applicant has satisfied the two prerequisites under rule 5 (2) (b) namely, whether the appeal is arguable and whether absent of stay, if the appeal succeeds, it will be rendered nugatory. An "arguable appeal" is one that raises at least one bona fide issue worthy of consideration by the Court. It does not mean the appeal must necessarily succeed. It simply means the grounds are not "trifling" and deserve a full hearing. (See this Court’s decision in Kenafric Matches Ltd vs. Match Masters Limited & Ano. (Civil Application E092 of 2021) [2021] KECA 188 (KLR). However, in determining the question whether an appeal is arguable, this Court is constrained not to make definitive findings of fact or law at this stage to avoid "embarrassing" the bench that will hear the main appeal. With this limitation in mind, it will suffice for us to mention that whether or not the applicant’s application for leave to amend its plaint was properly dismissed is an arguable ground worth consideration by this Court. Accordingly, we are satisfied that the applicant has satisfied the first prerequisite. 15.The other requirement is that an applicant must prove that unless the stay is granted, the success of the appeal (if it eventually succeeds) will be rendered nugatory, that is, the victory would be rendered worthless, futile or invalid. The applicant must satisfy the Court that the harm that will occur is irreversible. Speculative fears or theoretical losses do not meet this threshold. (See Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR). 16.As mentioned earlier, if the stay is refused, the proceedings before the trial court will proceed and the case will be determined on the basis of the plaint on record. The intended amendments will have been shut out, which means, the applicant will have lost the chance to have its dispute adjudicated upon by a competent court. As was held by the Supreme Court in Teachers Service Commission vs. Kenya National Union of Teachers, [2015] eKLR, “rule 5 (2) (b) is essentially a tool of preservation. It safeguards the substratum of an appeal. …rule 5 (2) (b) is derived from article 164 (3) of the Constitution. It illuminates the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal, or an intended appeal.” 17.Conserving the substratum of a case refers to the Court's duty to preserve the subject matter of a dispute so that the appeal does not become a mere "academic exercise". If the subject matter is destroyed or irreversibly altered before the appeal is heard, the appeal is said to be rendered nugatory. What renders an appeal nugatory depends on the unique circumstances of each case. (See Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227). The Court must balance the competing rights of the parties to ensure that the successful party on appeal can still enjoy the fruits of their judgment. In the peculiar circumstances of this case, we are clear in our minds that the interests of justice tilt in favour of preserving the sub stratum of the appeal. To hold otherwise would in our view be a recipe for opening the door for the parties to engage in protracted litigation with one party armed with a judgement rendered by the appellate court (in the event the applicant’s appeal succeeds) and the other party holding a judgment by the lower court (in the event the trial court determines the primary dispute in its favour). 18.Accordingly, we allow the applicant’s application dated 5th December 2025 and order that pending the hearing and determination of Civil Appeal No. E418 of 2022, there shall be stay of proceedings in Milimani E.L.C. No. 178 of 2009, Morop Distributors (K) vs. Nairobi City County Government (formerly City of Nairobi) & Others. The costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.J. MATIVO.......................................JUDGE OF APPEAL PAUL LILAN, MBS SC.......................................JUDGE OF APPEALDR. J. O. OKELLO.......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.Deputy Registrar.