https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1401

Khan v Swaleh & another (Civil Application E100 of 2025) [2026] KECA 1401 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1401 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E100 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Naseem Nazir Khan Applicant and Saida Mohamed Swaleh 1st Respondent Mohamed Ayub Khan 2nd Respondent (An application for stay of proceedings under rule 5(2)(b) of the Court of Appeal Rules, 2022 pending appeal against the Ruling of the High Court of Kenya at Mombasa (Mutai, J.) delivered on 3rd October 2025 in Mombasa Succession Cause No. 2 of 2019) Ruling 1.Naseem Nazir Khan (the applicant) filed a Notice of Motion dated 18th November 2025 under rule 5(2) (b) of this Court’s Rules seeking:i.Spent.ii.Spent.iii.That pending the hearing and determination of the intended appeal and/or further orders, this Honourable Court be pleased to issue an order of stay of any further proceedings in Mombasa High Court Succession Cause No. 2 of 2019, Naseem Nazir Khan vs. Saida Mohamed Swaleh.iv.That costs of, and incidental to, this application do abide the outcome of the main appeal. 2.The application is based on the grounds on the face of it, and is further supported by the affidavit of the applicant sworn on even date. 3.In brief, the subject matter in dispute is the distribution of the estate of Nazir Khan Mohamed (the deceased) in which it is alleged that he wrote a Will dated 23rd February 2017. The applicant filed a Petition dated 22nd January 2019 for grant of letters of administration with a written Will annexed, and pursuant to which a Grant of Administration dated 7th June 2019 was issued. Saida Mohamed Swaleh (the 1st respondent), filed objection proceedings dated 20th June 2019 seeking revocation of the grant on the ground that the proceedings to obtain them were defective in substance. 4.The objection proceedings commenced on 10th May 2021 with the applicant calling three witnesses. 5.In this application, the applicant’s contention is that she did not produce, as part of her supporting documents, the Will dated 23rd February 2017, reason being that it did not capture all the deceased’s assets. The applicant deposed that, on 20th September 2023, parties filed their written submissions to the main suit, and oral highlighting was set for 17th October 2023; that the 1st respondent’s counsel highlighted his submissions and, thereafter, filed an application dated 25th October 2023 seeking to re-open the proceedings to call one Mr. Ambwere as a witness, which application was allowed. 6.The applicant stated that Mr. Ambwere testified on 24th July 2024 denying knowledge of the Will dated 23rd February 2017 and that he witnessed it being prepared by the deceased; that the evidence of Mr Ambwere prejudiced her as a result of which, through an application dated 23rd September 2024, she sought to re-open the proceedings so as to rebut the testimony of Mr. Ambwere and, conversely, call the Executive Officer from Mombasa Law Courts to produce the file in CMCC No. 335 of 2017 in which the petition for grant of probate of the last Will of the deceased was made. According to the applicant, Mr Ambwere also denied having filed the petition, and that he claimed that she was fixing him. 7.The 1st respondent opposed the applicant’s application dated 23rd September 2024 through a replying affidavit sworn on 3rd December 2024, and the 2nd respondent through a Notice of Preliminary Objection dated 18th October 2024. However, the trial court, by a ruling dated 3rd October 2025, dismissed the application primarily on holding that the applicant wanted to fill gaps in her case so soon after Mr Ambwere testified. The dismissal prompted the applicant to commence appeal proceedings before this Court as evinced by a Notice of Appeal dated 15th October 2025. 8.The applicant contended that failure to allow her open the proceedings prejudiced her since: she never formally produced the Will dated 23rd February 2017; the testimony of Mr. Ambwere was trial by ambush and; she was never given an opportunity to rebut his testimony, which touched on fraud, forgery and perjury, which offences are criminal in nature. It is the applicant’s further contention that, should stay not be granted, she will suffer substantial prejudice, injustice and procedural disadvantage as the matter was scheduled for a judgement date after highlighting her submissions; and that, for as long as the testimony and evidence of Mr Abwere remained on record, it shall, throughout the trial court proceedings, continue having fundamental negative impact on her case. 9.The 1st respondent opposed the application through a replying affidavit sworn on 1st December 2025. She deposed that re-opening of proceedings is in exercise of a court’s discretion, and a trial court cannot be faulted for denying an applicant such relief; that, on 24th July 2024, the applicant was granted an opportunity to extensively cross-examine the maker of the Will, Mr Tom Ambwere; that after the cross- examination, the applicant made an oral application to recall two witnesses, being the 1st respondent and the Executive Officer of the Magistrate’s Court, which application was disallowed. 10.The 1st respondent further deposed that the applicant failed to disclose that she was in control of the deceased’s estate; that the applicant produced the documents which she was cross examined on; that it is after she realised the gaps to which the documents had exposed her case that she sought to re-open the proceedings; that the request to re-open the case was therefore an afterthought, and no good grounds were advanced as to why her application ought to have been allowed; that all parties were accorded a fair hearing; and that it is only fair that the trial court be permitted to render its judgement on the dispute. 11.On his part, and in opposing the application, the 2nd respondent filed a replying affidavit dated 2nd December 2025. He similarly deposed that the 1st respondent filed an application by way of Chamber Summons dated 24th October 2023 seeking to re-open the proceedings in order to allow Mr. Ambwere to give oral testimony on the authenticity of the Will dated 23rd February 2017; that that application was opposed by the applicant through a replying affidavit dated 1st November 2023; and that, by a ruling dated 6th May 2024, the trial Judge allowed the application, thereby paving way for Mr. Ambwere to testify on 24th July 2024. 12.It was further deposed that the applicant was allowed to cross-examine Mr. Ambwere, and that, thereafter, she made an oral application to be allowed to recall witnesses and, in particular, herself despite the fact that she had already testified; that the court directed that a formal application be filed, which the applicant did, and in which she sought to re- open the proceedings to rebut the testimony of Mr. Ambwere regarding the authenticity of the Will dated 23rd February 2017, and to enlarge time to allow issuance of a third-party notice to him. 13.Mr. Ayub stated that the trial court delivered the impugned ruling declining the applicant’s prayer; that the allegations by the applicant that the Will produced by Mr. Ambwere and his testimony was an ambush cannot be true since the applicant filed for Grant of Letters of Administration with Written Will annexed, which she claims was not produced formally in court; that the application by the applicant to testify once again amounts to allowing the applicant to have a second bite of the cherry and fill gaps in her testimony; and that the applicant has not demonstrated the loss or prejudice she will suffer as to render the intended appeal nugatory if the application is not allowed. 14.The applicant, in her further affidavit dated 4th December 2025, stated that the failure of Mr. Ambwere to file a Witness Statement was tantamount to trial by ambush, and that Mr. Ambwere’s testimony of 24th July 2024 infringed on her right to fair hearing. She denied that she manages the deceased’s properties since the deceased and the 2nd respondent had a settlement agreement dated 30th July 2013 placing some of the deceased’s property, including rental and businesses accruing income under a Trust which is managed exclusively by the 2nd respondent. 15.At the plenary hearing on 19th January 2026, learned counsel Mr. Kiragu appeared for the applicant, learned counsel Mr. Siminyu for the 1st respondent and learned counsel Ms. Nzima Kasmani for the 2nd respondent. Each counsel relied on their respective parties’ written submissions, which they highlighted orally. Those of the applicant are dated 5th December 2025; of the 1st respondent 15th December 2025; and of the 2nd respondent 16th December 2025. 16.We note that the submissions basically restated the respective parties’ averments as contained in their affidavits in support of, and in opposition to, the application. The applicant cited the decisions of this Court in Kenneth Nyaga Mwige vs. Austin Kiguta & 2 others (2015) KECA 334 (KLR); and Mwagandi vs. Lewa (2025) KECA 1036 (KLR) to support her argument that the intended appeal was arguable, more so on the grounds that the applicant needed to rebut the assertion by Mr. Ambwere that the Will was a forgery, which amounted to fraud and perjury which are criminal offences; and that the learned Judge erred in denying her an opportunity to reopen her case to rebut Mr. Ambwere’s evidence adduced after he was recalled; and the decisions of this Court in Elizabeth Kamene Ndolo vs. George Matata Ndolo (1996) KECA 209 (KLR); and Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others (2013) KECA 378 (KLR) for the submission that the intended appeal will be rendered nugatory if stay of proceedings is not granted pending hearing of the intended appeal against the ruling declining to allow her to recall her evidence. 17.The first respondent cited the decisions of the High Court in Kenya Wildlife Service vs. James Mutembei (2019) KEHC 10478 (KLR) (Gikonyo, J.) and Global Tours & Travels Limited Nairobi HC Winding Up Cause No. 43 of 2000 (Ringera, J.) for the submission that stay of proceedings is a matter of judicial discretion whose standards are high and stringent as it interferes with the right of a litigant to conduct his litigation. 18.The 2nd respondent referred to the decision of the ELC in Susan Wavinya Mutavi vs. Isaac Njoroge & Another (2020) KEELC 8 (KLR) where the court set out the parameters for re-opening a case being, among others, that it is an exercise of judicial discretion; that, if the same is intended to fill gaps in evidence as in the instant scenario, it will be rejected; and that the evidence sought to be adduced should be one that has an important influence on the result of the case; decisions of the High Court (Nairobi) in Hannah Wairimu Ngethe vs. Francis Mungai Ng’ang’a & another [2016] KEHC 7330 (KLR) for the submission that the applicant, having already testified and thoroughly cross- examined Mr Ambwere, there was nothing new that the re- opening of her case was intended to bring on board or add value to the case; and Global Tours & Travel Limited (Nairobi) HC Winding up Cause No. 43 of 2000, which was cited with approval in Meru Civil Appeal No. 40 of 2018 cited as Kenya Wildlife Service vs. James Mutembei [2019] eKLR for the proposition that stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation, and that it impinges on the right of access to justice, right to be heard without delay and, overall, the right to a fair trial; and that, in this instance, the applicant had not demonstrated the extra ordinary circumstances that warrants the grant of stay of proceedings which are at an advanced stage. 19.We have considered the application, the affidavits in support of, and in opposition to, the application, the respective parties’ submissions, the cited authorities and the law. 20.The applicant seeks to stay the proceedings before the High Court in Mombasa High Court Succession Cause No. 2 of 2019. The principles applicable in stay of proceedings are similar to those applicable in grant of an injunctive or stay of execution orders under rule 5(2) (b) of this Court’s Rules. An applicant who wishes to be granted stay of proceedings should demonstrate that the appeal or the intended appeal is arguable and, secondly, if stay is not granted, the appeal will be rendered nugatory. It is also well settled law that an application under rule 5(2)(b) is a matter of the Court’s discretion. This Court in Attorney General vs Okiya Omtatah Okoiti & Another (2019) KECA 774 (KLR) held:“The principle for our consideration in the exercise of an unfettered discretion under Rule 5 (2) (b) to grant an order for stay are now well settled. Firstly, an applicant has to satisfy that he/she has an arguable appeal. however, this is not to say that it must be an appeal that will necessarily succeed, but suffice to state that it is an appeal that is not frivolous and/or idle. Secondly, an applicant has to demonstrate that unless an order of stay is granted the appeal or intended appeal should be rendered nugatory.’’ 21.We hasten to point out that, in an application for stay of proceedings, the bar for grant of such an order is higher because, it results in grave judicial action which seriously interferes with the right of a litigant to conduct his litigation, thereby limiting access to justice. Therefore, a stay of proceedings will only be granted in the rarest of the cases, and based on a case to case basis. This Court in David Morton Silverstein vs. Atsango Chesoni [2002] eKLR rendered itself thus:“The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the Court's own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts ….” 22.In a persuasive decision of the High Court of Kenya at Meru (Gikonyo, J.) in Kenya Wildlife Service v James Mutembei (supra), it was held that:“Stay of proceedings should not be confused with stay of execution pending appeal. 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 proceeding is high and stringent” 23.And, as is underpinned in Halsbury’s Laws of England, 4th Edition. Vol. 37 pp.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.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 not 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”. 24.In respect of the first limb, as to the arguability of an appeal, the threshold to determine what is arguable is low because even a solitary bona fide ground is sufficient to constitute a bench of this Court to hear such an appeal provided it is not frivolous. This Court in R.F.S. vs. J.D.S (2013) KECA 366 (KLR) observed:‘‘Now an appeal is said to be arguable when it contains grounds, points or issues that can genuinely be asserted, on which there can be divergent legal or factual positions of some merit worthy of judicial investigation and determination. To succeed, it is enough that even a single, solitary ground of such description exists and the same need not be one that must necessarily succeed an appeal.” 25.Having perused the grounds of appeal in the applicant’s draft Memorandum of Appeal dated 18th November 2025, the applicant is aggrieved by, among others, that the trial court improperly exercised its discretion by refusing to re-open her case so that she could call further evidence and, hence, denied her the right to a fair hearing. We think that this is sufficient to be considered as an arguable ground in the intended appeal. In other words, it is not an idle or frivolous ground of appeal, and it required a consideration a full bench of this Court. 26.With regard to the second limb, the position in law is whether the appeal will be rendered nugatory if stay is not granted and, if what is sought to be stayed, is allowed to happen, is reversible or, if not reversible, damages will adequately compensate the aggrieved party. See: Reliance Bank Ltd vs. Norlake Investments Ltd (2002) 1EA 227. 27.The applicant’s case is that she sought to re-open the proceedings in order to rebut Mr. Ambwere’s testimony. We have not heard the applicant claiming that she did not participate in the proceedings through cross-examination when Mr. Ambwere took the stand to testify. In our considered view, the issues that were brought out in Mr. Ambwere’s evidence and cross-examination will be subject to determination in the judgment of the trial court. 28.To ask for a stay of proceedings is tantamount to pre- emptying the outcome of the decision of the trial court. Furthermore, there is actually nothing to stay, taking to mind that the proceedings are at an advanced stage. Parties have already submitted and judgment is in the offing. Whichever way the judgment goes, the aggrieved party will have an opportunity to challenge the outcome on appeal to this Court. The arguments which the applicant is raising now will be subject of appeal, if any is preferred as gleaned from the grounds of appeal and, as such, she does not stand to suffer any prejudice if the trial court proceedings are not stayed. Consequently, it would be prejudicial to the other parties in the proceedings to grant a stay of the proceedings when the trial has almost come to an end. 29.In the premise, we come to the conclusion that the applicant has not met the threshold for grant of stay of proceedings. Consequently, the Notice of Motion dated 18th November 2025 is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR..................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb...................................JUDGE OF APPEALG. W. NGENYE-MACHARIA..................................JUDGE OF APPEALI certify that this is a true copy of the originalsigned Deputy Registrar