https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7860

Mwaita v Wamalwa & another (Suing as the legal representatives of the Estate of Lucy Muhabi - Deceased) (Civil Appeal E233 of 2025) [2026] KEHC 7860 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7860 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E233 of 2025 E Ominde, J June 3, 2026 Between Gideon Mwaita Appellant and Sarah Kagea Wamalwa & Dickson Maloba (Suing as the legal representatives of the Estate of Lucy Muhabi - Deceased) Respondent Ruling 1.By a Notice of Motion dated 6th November 2024 brought under Section 3A of the Civil Procedure Act and Orders 42 Rule 6 of the Civil Procedure Rules, the Applicant seeks the following orders:1.Pending the hearing and determination of this Appeal, the Honorable Court be pleased to stay proceedings in MCCC No. E210 of 2025 at the Chief Magistrate’s Court in Eldoret.2.That the costs of this application be provided for. 2.The application is anchored on the grounds on the face of it and the Supporting Affidavit of Gideon Mwaita sworn on 17th September 2025. The Applicant deposed that he filed an Application dated 24th July 2025 in Eldoret MCCC No. E210 of 2025 seeking to be struck out of the suit for misjoinder which application was dismissed on 11th September 2025. It his deposition that the said Application raised serious questions of law and fact relating to misjoinder of parties and the principle of corporate legal personality which are substantial and arguable and warrant full consideration on appeal. 3.That being dissatisfied with the said ruling, the Appellant/Applicant has lodged an appeal to this Court and filed a Memorandum of Appeal dated 17th September 2025. The Applicant is apprehensive that unless the proceedings before the Trial Court are stayed, the appeal may be rendered nugatory as the matter may proceed before a Court that lacks jurisdiction thereby causing him irreparable prejudice and undermine the appellate process. 4.The Applicant further deposed that the Application has been brought without unreasonable delay and in the interest of justice. The Applicant is willing to comply with reasonable terms and/or conditions that this this Court may impose pending the determination of the intended Appeal. Replying Affidavit 5.The Application is opposed by the Respondent videa Replying Affidavit sworn by Sarah Kagea Wamalwa, on 29th September 2025. The Respondent deposed that the Application lacks merit, is incompetent, an afterthought, frivolous, mischievous, a waste of judicial time and a misuse of the judicial process and contends that the same does not meet the threshold stipulated under Order 42 Rule 6 of the Civil Procedure Rules and thus the orders sought should not be granted. 6.The Respondent deposed that on 11th September 2025, when the Ruling was delivered by the Trial Court, the Applicant never sought for leave to appeal against the said ruling and all Counsel present for the parties certified the lower Court matter ready for hearing and a hearing date was schedules by the trial Magistrate by consent. The Respondent maintained that such failure by the Applicant to obtain leave to appeal against the said Ruling deprives this Court of jurisdiction to hear this instant application and also the draft Memorandum of Appeal filed and that the same should be struck out. 7.The Respondent further deposed that for grant of orders of stay of proceedings pending appeal to succeed, an appeal must have been filed by the Appellant. The Respondent contends that in the instant case, no valid appeal has been filed. The Respondent observed that what has been presented by the Appellant/Applicant is a Draft Memorandum of the Appeal and that the same cannot be deemed to be a competent appeal. In this regard, the Respondent urged that the instant Application has been anchored on nothing. 8.The Respondent deposed that even if the Court was to be lenient to consider the Draft Memorandum of Appeal as presented, the Applicant in the instant case has not demonstrated that the Draft appeal will be rendered nugatory if the orders sought are not granted and further that the Applicant has also not demonstrated with clarity and precision that he has an arguable appeal and that he can therefore wait for the outcome of the lower Court matter and if dissatisfied then he can proceed to file an appeal as opposed to the instant appeal. 9.The Respondent has also deposed that the issues raised by the Applicant herein are the same issues raised by the in his Statement of Defence before the trial Court and so there is no prejudice that the Applicant will suffer if the trial Court proceeds the matter and renders its decision as there is still an avenue for him to appeal against the final judgment of the lower Court. The Respondent deposed that costs would suffice in the event that the Appellant succeeds in the intended appeal without obtaining orders of stay of proceedings as sought. 10.The Respondent contends that she will be greatly prejudice if the proceedings in Eldoret CMCC No. E210 of 2025, are stayed for treasons that she lost her daughter as a result of the road traffic accident that occurred on 3rd January 2025 which is the subject matter of the Lower Court case and she needs that the matter to be concluded expeditiously to enable them to find closure. According to the Respondent, the Applicant herein is unjustifiably seeking to deny her a chance to prosecute her case filed vide Eldoret CMCC No. E210 of 2025, expeditiously which is against the Spirit of the Constitution of Kenya, 2010. Supplementary Affidavit 11.The Applicant also filed a Supplementary Affidavit dated 18th November 2025 wherein save for reiterating the contents of his Supporting Affidavit he basically denied the averments by the Respondent and thus I find no reason to reproduce the same. 12.The Application was canvassed by way of written submissions. The Applicant filed their submissions dated 18th November 2025 and the Respondent filed their submissions also dated 18th November 2025. Applicant’s Submissions 13.Counsel submitted that it is a trite law that for an applicant to succeed in an application for stay of proceedings, it suffices that the appeal raises substantial and arguable questions of law or fact. Counsel maintained that the Court is not at this stage required to determine the merits of the appeal, but only to satisfy itself that there exists a bona fide issue to be considered on appeal. Counsel relied on Richard Otieno Asudi v Jason Mworia DCIO & 5 others [2014] and Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others [2014] eKLR. 14.He submitted that in the present case, the Applicant/Appellant raises a serious fundamental questions of law regarding improper joinder, the principle of corporate legal personality and whether a director may be personally liable for obligations of the company, when the claim is clearly directed at the company itself. 15.Counsel submitted that the issue of whether a company director can be sued personally is a foundational legal question, long settled in jurisprudence. The doctrine of a corporate personality, as affirmed in Salomon v Salomon & Co Ltd [1897] AC 22, establishes that a company is a separate legal entity distinct from its members and directors, and its liabilities cannot be imputed to a director absent evidence of fraud or personal undertaking. 16.Counsel urged that this principle alone renders the appeal substantial and arguable. Counsel maintained that these circumstances demonstrate the appeal is bona fide and not frivolous and stated that the existence of these substantial question of law regarding improper joinder and corporate legal personality are sufficient to justify a stay of proceedings. Counsel further submitted that premised on the dicta which ran across the aforementioned cases, it is evident that the appeal raises substantial and arguable questions because the Applicant/Appellant was sued in his personal capacity over a matter properly belonging to the company, creating a clear threshold issue for this Honorable Court to determine. 17.Counsel further submitted that it is settled law that one of the primary considerations in granting a stay of proceedings is whether the applicant will suffer irreparable prejudice or whether the Appeal will be rendered nugatory if the proceedings continue. Counsel contended that he Applicant/ Appellant must show that proceeding with the trial would cause hardship that cannot be remedied by costs or a later appeal. Counsel relied on the case of Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR) where the Court stated that:“The term 'nugatory' has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved." 18.Counsel urged that irreparable prejudice arises where a party may be compelled to participate in proceedings in which they are improperly joined or otherwise exposed to liability that is not properly theirs and submitted that because in the present case the Applicant/ Appellant was sued personally over a matter that properly belongs to the company, a continuation of the proceedings in the lower court would compel him to defend a claim for which he bears no personal liability, exposing him to undue hardship and creating a scenario where any eventual appellate determination may be rendered meaningless. 19.Counsel urged that the purpose of stay is to preserve the substratum of the appeal. In the present case, the substratum of the appeal is the very presence of the Applicant in the lower court proceedings. Counsel maintained that of those proceedings continue, the appeal will be rendered nugatory. Counsel observed that Courts have repeatedly emphasized that a stay is warranted where proceeding with the trial would render an appeal ineffective or expose a party to irreparable prejudice. Counsel thus submitted that the continuation of the trial would cause irreparable prejudice and this then justifies the grant of a stay pending the determination of the appeal. 20.Counsel further submitted that it is settled law that the grant of a stay of proceedings is a discretionary remedy which ought to be exercised judiciously, having regard to the facts and circumstances of each case. Counsel added that the overriding consideration is whether granting the stay will serve the interests of justice, preserve the rights of the parties, and prevent undue hardship. Counsel contended that in the present case, the Applicant/ Appellant faces proceedings in which he has been improperly joined, and is being compelled to defend a claim for which he bears no personal liability. The continuation of such proceedings would not only expose him to undue hardship but also risk inconsistent outcomes, where a determination of the merits could later be found to have been wrongly imposed on him personally. 21.Further, Counsel urged that the continuation of proceedings would undermine the principle of fairness and urged that the Applicant/Appellant has acted promptly in filing this appeal and in seeking a stay, and yet may be forced to participate in proceedings that should not lawfully involve him. Counsel stated that in light of the above, and considering that the appeal raises substantial and arguable questions of law regarding improper joinder and corporate legal personality, it is just and equitable for this Honorable Court to grant a stay of proceedings in MCCC No. E210 of 2025 pending determination of the appeal. 22.In conclusion, Counsel submitted that it is clear that the Applicant/ Appellant has raised substantial and arguable questions of law and fact on appeal. Counsel urged that issues of improper joinder, corporate legal personality, and the extent of a director's personal liability are fundamental legal questions that warrant full appellate consideration and that in this regard, the appeal is bona fide and not frivolous. Respondent’s Submissions 23.On her part, Counsel for the Respondent submitted that in an application for stay of proceedings, the Court must satisfy itself that; the applicant has established a prima facie case arguable case, the Application was filed expeditiously and that 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. 24.Regarding a prima facie case, Counsel sought to be guided by the Draft Memorandum of Appeal attached to the application and the prayers sought in the application itself. Counsel pointed out that it is the Appellant/Applicant's contention that he is not the owner of the suit motor vehicle that led to the accident that occurred on 3rd January 2025 and that he filed an application before the trial court seeking to be struck out of the proceedings but the Court did not allow his prayers which then resulted in the instant appeal. 25.Regarding the issues of a necessary party to a suit, Counsel cited Order 1 Rule 9 of the Civil Procedure Rules, 2010 and submitted that based on the said provision, the trial Court keenly analyzed the application before it and declined the prayer to strike out the applicant from the suit based on the documents supplied. Counsel argued that it thus follows that, seeking to stay proceedings on an issue of joinder and misjoinder of parties is basically calling upon this Court to delay the trial Court matter which the Respondent has hopes that it will be concluded in good time. 26.Counsel further submitted that the issues leading to this appeal can await the determination of the lower Court matter and thereafter one single appeal raising the issues herein can be brought up if the Appellant/Applicant will be dissatisfied with the outcome of the trial Court matter and urged that the Appellant/Applicant has not brought forth an arguable appeal and the application for stay of proceedings will only delay the determination of the trial Court matter. Counsel relied on the case of Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 and Turbo Highway Eldoret Limited Vs Muniu (Civil Appeal E040 of 2021). 27.Counsel argued that the trial Court matter vide Eldoret CMCC No. E210 of 2025 which is the subject of this instant appeal and application is pending delivery of Judgment which is scheduled for 26th February 2025 and also pointed out that parties have already filed their final submissions in this regard. Counsel therefore urged that it will only delay justice if the proceedings are stayed at such a critical time and submitted that it is therefore fair to allow the trial Court to deliver its judgment and the Applicant to then pursue the appeal afterwards if he will still wish to do so. Counsel further urged that the stage at which the trial Court matter has reached is a clear indication that there is nothing to be stayed at this point and relied on Christopher Ndolo Mutuku & Another vs CFC Stanbic Bank Limited [2015] eKLR in this regard 28.In respect of the issue of delay, Counsel submitted that the Ruling by the trial Court was delivered on 11th September 2025 and the applicant in this case filed the instant application on 17th September 2025 and added that the said application was filed after the Court gave directions for a hearing date in the presence of the Counsel for the Appellant/Applicant and that no indication was raised or leave sought to file the instant application. According to Counsel, that clearly shows that the applicant was indolent. Counsel relied on the case of Jaber Mohsen Ali & another v Priscillah Boit & another [2014] KEELC 132 and submitted that the Respondent's submissions that the application filed by the Applicant was not brought forth expeditiously noting that no leave was sought and the same should not see the light of the day. 29.With regard to sufficient cause, Counsel submitted that no sufficient cause has been established, reiterated that the Applicant's application is only meant to derail the trial Court matter, contended that the Applicant has not precisely stated which irreparable loss or injustice that will be occasioned to him if the application is disallowed and maintained that participating in the trial Court's proceedings cannot prejudice the Applicant and in any event, the matter has been heard and concluded. 30.Counsel further submitted that the Applicant was fully aware of the trial court matter but chose not to participate in it and added that judgment is set to be delivered and urged that the trial Court should be allowed to deliver its decision. Counsel submitted that even if the court were to dismiss this application, the appeal will not be rendered nugatory in any way. Counsel relied on Chemagro Limited & 2 Others v National Bank of Kenya [2008] KEHC 1190 (KLR) and Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) 31.On the issue of costs, Counsel relied on the case of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd [2014] eKLR and submitted that the Appellant/Applicant has dragged the Respondent to this application and it is prudent that the Respondent be awarded the costs of the same having spent resources in defending the application Determination 32.I have addressed my mind to the Application, the Replying Affidavit the Submissions filed by both parties and including the case law cited and relied upon and in my considered opinion, the only issue that arises for determination is whether the order for stay of proceedings sought by the Applicant is merited. 33.The law governing the issue of stay of proceedings is provided for under Order 42 Rule 6(1) of the Civil Procedure Rules. On its terms it is discretionary. However, the aggrieved party must satisfy the Court on a well set of conditions precedent to be made before such exercise of discretion in his or her favor. It provides as follows;“(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 34.The principles that guide the exercise of this discretionary power of the court have been variously set out by the courts in varied decisions including Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000, unde Christopher Ndolo Mutuku & Another vs CFC Stanbic Bank Limited (2015) eKLR , Kenya Wildlife Services v Jane Mutembi (2019) eKLR, In these decisions, emphasis by the courts is on the fact that stay of proceedings is a serious grave and fundamental interruption of a party’s right to have their case heard and determined on its merits and in this regard therefore, it ought to be exercised sparingly and only in exceptional cases. Needless to state, the exercise of discretion by the court must be grounded on judicious principles. 35.In the case of Kenya Wildlife Services v Jane Mutembi (2019) eKLR, the court observed that stay of proceedings should not be confused with stay of execution pending appeal. Indeed, although Order 42 Rule 6(1) refers to stay of execution as well as stay of proceedings, Sub rule 2 is the one that solely applies to stay of execution. In this decision, Goikonyo J stated thus on stay of proceedings;Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.” 36.These guidelines on the threshold that needs to be met by parties in applications seeking for stay of proceedings has been aptly captured in Halsbury’s Law of England, 4th Edition, Vol. 37 page 330 and 332 as follows:“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 proceedings 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….It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 37.The principles for stay of proceedings pending appeal were set out in the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019] eKLR as follows:a.First, there must be an appeal pending before the higher Court;b.Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;c.Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;d.Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;e.Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; andf.Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. 38.In the case of Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR), (Supra) the Court of Appeal stated that:-“On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised”. 39.Additionally, the Court of Appeal in the case of University of Nairobi v Ricatti Business of East Africa [2020] KECA 463 (KLR) held that:“An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous”. 40.In line with the foregoing guidelines, in considering the application by the Applicant, I am satisfied firstly that he did come to court with the requisite expedition given that his application was filed within the thirty-day timeline for filing of appeals. I am also satisfied that there is appeal already properly filed before this court and a prim facie consideration of the grounds listed in the Memorandum of Appeal filed, I am satisfied that the same demonstrates that the appeal is indeed arguable. 41.On the issue raised by the Respondent that there is no competent appeal filed worth the consideration of the court for reasons that the Applicant has only submitted a Draft Memorandum of Appeal and it is upon it that he relies with the net result that the Application is therefore premised on nothing, the Court invokes its primary and core objective in the hearing and determination of every dispute before it as set out in Section 1A, 1B, 3 of the Civil Procedure Act, its inherent powers as set out under Section 3B of the Civil Procedure Act and the provisions of Article 159 (2) (d) of the Constitution and finds that the same is a procedural technicality that does not affect the substance of the dispute and shall therefore proceed to determine the Application on its merits 42.The Applicant main bone of contention is that the 2nd defendant in the suit before the lower court, FineTouch Africa Limited, is a duly incorporated limited liability company that has several directors including himself. That in light of the principle long set out in the case of Salomon v Salomon [1897]AC 22 which establishes that a company is a separate legal entity distinct from its members and directors’ dictates that the liabilities of the company cannot be imputed to a director absent fraud and personal undertaking, he is the only director who has been sued in his personal capacity as the 1st defendant. That this is despite the fact that he did not personally own the accident motor vehicle, gave no personal guarantee, and has not been accused of fraud or any improper conduct. 43.In considering the Applicants reasons for seeking a stay of proceedings as herein summarized in light of the requirement that the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal as set out in the principles enunciated in William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019](supra). 44.In juxtaposing the Applicants reasons for seeking a stay of proceedings as against Respondents cause of action before the Lower Court as deposed in the Replying Affidavit herein, the court notes that it has been deposed by the Respondent that the issues herein raised by the Applicant are in fact the substance of the averments made in the Applicant’s defence before the trial Court. 45.This being the case, this is an issue that should be directly and substantially an issue for determination before the trial court in its final rendition and which in all probability shall be a part of the judgement that will be rendered by the trial court. Clearly therefore, the Applicant has failed to demonstrate that that there are exceptional circumstances pertaining to his case before the trial Court which makes the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal. 46.Further, as envisaged in such applications as has been aptly stated in Halsbury’s Law of England, 4th Edition, Vol. 37 page 330 and 332 (supra) the Applicant has also failed to demonstrate to court that the Respondents claim before the trial court is frivolous, vexatious or harassing or can be said to be manifestly groundless or that it is a claim in which there is clearly no cause of action in law or in equity. 47.Further, the applicant has failed to show and/or demonstrate that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case. This is because save to protest his being sued in his personal capacity in the case, the Applicant has not denied that the road traffic accident the subject matter of the case before the trial court occurred as alleged. 48.Lastly, in considering the prejudice that the Applicant states that he will suffer if the proceedings are not stayed, I am not satisfied that the same have demonstrated that the kind of exceptional circumstances that a party must demonstrate in such cases to warrant the orders sought. This is by dint of the fact that it is my considered opinion that in the event that the trial Court were to find in his favour, the same can very easily be compensated for by way of costs and he has not at all alluded to the fact that the Respondent is impecunious and would not be able to afford whatever costs that may be awarded to him. 49.In conclusion, the upshot of my above findings is that the Applicant’s Application lacks merit and the same is accordingly dismissed with costs to the Respondents. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE