Munguti v APA Insurance Company Ltd (Civil Appeal E100 of 2025) [2026] KEHC 11859 (KLR) (29 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT EMBU** **CORAM: R. MWONGO, J.** **CIVIL APPEAL NO. E100 OF 2025** SIMON MAENDE MUNGUTI….………………........................APPELLANT/APPLICANT **-VERSUS-** APA INSURANCE COMPANY LTD…………………………………………RESPONDENT **RULING** **Background** 1. Judgment was entered against the applicant in Siakago SPMCCC 17 of 2020. The respondent filed a declaratory suit seeking to avoid responsibility to settle the decretal amount as the insurer. During the defense case, the applicant filed the application seeking leave to file additional documents. The application was premised on grounds, inter alia, that the time of the pretrial conference, the additional documents being OB extracts and other related documents were not ready and they were availed by the investigating officer after the pretrial conference. When the application was dismissed, he appealed against that decision of the trail court and then filed the present application. **The Application** 1. The applicant filed a notice of motion dated 27th January 2026, which is supported by the grounds set out on its face and the facts deposed in the supporting affidavit thereof. The orders sought are as follows: 1. Spent; 2. That pending the hearing and determination of this application, the honourable court be pleased to grant an order of stay of proceedings in Siakago MCCC E016 of 2020; 3. That pending the hearing and determination of the appeal, the honourable court be pleased to grant an order of stay of proceedings in Siakago MCCC E016 of 2020 4. That the costs of this application be provided for. 2. The applicant had moved the trial court vide application dated 18th November 2024 seeking leave to produce additional documents including OB extracts relevant to the accident. The application was dismissed, thus necessitating the present appeal. He stated that the proceedings before the trial court are still ongoing. That it is important that the proceedings be stayed pending determination of the appeal, failing which the applicant risks suffering irreparable damage. He stated that the appeal raises important issues regarding introduction of important documents into evidence and that the additional documents go to the heart of the proceedings. **Replying Affidavit** 1. The respondent opposed the application through a replying affidavit in which he termed the application as frivolous, vexatious, scandalous and an abuse of judicial time. That the applicant never sought stay of the substantive suit, and that the application was filed more than 2 months after the application was dismissed by the trial court. It stated that the application is an afterthought that is meant to delay the course of justice since the applicant has not demonstrated what prejudice he will suffer if the order is denied. That it is being forced to shoulder the burden of delay in determination of the suit and unnecessarily so. It urged the court to dismiss the application. **Parties’ Submissions on the application** 1. The application was canvassed by way of written submissions. 2. In his submissions, the applicant relied on the case of **Makena v Nalwa (Civil Appeal E127 of 2024) [2024] KEHC 7720 (KLR)** and submitted that there is an appeal pending before this court; that the appeal raises substantial questions that ought to be determined on merit; and that if the order is denied, the appeal will be rendered nugatory. 3. The respondent relied on the cases of **Waithaka v Tribunal appointed to investigate the conduct of the Honourable Lady Justice Lucy Njoki Waithaka & another; Kenya Magistrates & Judges Association (Interested Party) (Civil Application 8 of 2020) [2020] KECA 571 (KLR), Global Tours and Travels Ltd. Nairobi winding up cause No 43/2000** and **Alois Oceano D'sumba v Rajnikant Narshi Shah & another [2017] eKLR**. It argued that the applicant was supposed to file the documents before the pretrial conference but he failed to do so. That there is no basis for staying proceedings in the trial court. **Issue for determination** 1. The issue for determination is whether the application has merit. **Analysis and Determination** 1. Stay of proceedings is a discretionary relief that the court may grant if it is in the interest of justice to do so. In this case, the applicant has appealed against a decision by the trial court dismissing his application seeking leave to file additional documents during the defense case. 2. In **Pacis Insurance Company Limited v Ichanga (supra)**, the court stated thus: “***LJ Githua in* Kenya Power & Lighting Company Limited vs. Esther Wanjiru Wokabi [2014] eKLR *stated:*** ***“…the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles;*** ***a) Whether the applicant has established that he/she has a prima facie arguable case;*** ***b) Whether the application was filed expeditiously; and*** ***c) Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.”*** ***Ringera J. (as he then was) in* Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 *stated thus;*** ***“….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”.*** ***According to the Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332,*** ***“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”*** ***This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases***.” **Conclusions and Disposition** 1. It is clear from a perusal of the trial court file, that the matter came up for hearing of the defense case twice but failed to proceed. It is scheduled for further defense hearing on 06th July 2026. The subject of the appeal herein is an order of the court denying introduction of new evidence during the defense case. The application was filed 2 months after the impugned ruling of the trial court. 2. Since the appeal is already filed and is pending determination, it is prudent that it (the appeal) be heard on its merits. However, this may be hindered if the proceedings before the trial court are not stayed since even the file itself cannot be presented to the appellate court for purposes of the appeal. 3. In the result, the present application succeeds. Prayer (3) is hereby granted as prayed. Costs of the application are awarded to the applicant. 4. Orders accordingly. **Delivered, dated and signed at Embu High Court this 29th day of July, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. MWONGO** **JUDGE** **Delivered in the presence of:** 1. Marua for Appellant/Applicant 2. Mwenda Ngunjiri holding brief for Kariuki for Respondent 3. Francis Munyao - Court Assistant