https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4724

### **REPUBLIC OF KENYA** ### **IN THE ENVIRONMENT AND LAND COURT OF KENYA** ### **AT KAJIADO** ### **ELC APPEAL NO. E047 OF 2025** **JANE MWIHAKI NDUTI & HENRY NDUTI MWANGI** **T/A BY HIS GRACE ENTERPRISES .....................................APPELLANTS /APPLICANTS** **VERSUS** **PEGGY KEIWUA, EUNICE NJERI & ANNE MUREI ...............................RESPONDENTS** ### **RULING** ***(In respect of the Notice of Motion application seeking a stay of proceedings in the lower court matter pending the hearing and determination of this appeal)*** **Introduction** 1. Before this Court for determination is the Application dated 18th March 2026, brought by the Appellants/Applicants. The application seeks, inter alia, a stay of proceedings in the lower court matter, Kajiado CMELC No. E002 of 2022, pending the hearing and determination of this appeal. 2. The Application is anchored on the Supporting Affidavit sworn by Jane Mwihaki Nduti. The Applicants advance several grounds in support of their application. First, the Applicants state that they are dissatisfied with the Ruling delivered on 1st July 2025 by Hon. E.M. Kagoni, SPM, which dismissed their application for the joinder of Proposed Third Parties. Following the dismissal, the Applicants filed a Memorandum of Appeal before this court on 29th July 2025. 3. The Applicants contend that the trial magistrate erred in law by finding that there is insufficient proof of ownership of Land Parcel No. KAJIADO/KITENGELA/97951 by the Proposed Third Parties, despite the existence of a Sale Agreement dated 4th March 2019 and the procured Land Control Board Consents. 4. The Applicants assert that the joinder of the Proposed Third Parties is integral to their defense, as the Respondents' claim for specific performance in the main suit is entirely premised on Land Title No. KAJIADO/KITENGELA/97951, which the Applicants had purchased from the said Proposed Third Parties. 5. The Applicants maintain that the appeal raises meritorious grounds, is not filed for the purpose of delaying proceedings, and that they seek to have the issue of the joinder of the third-parties judicially settled before the main suit proceeds to a full hearing. 6. The Application is opposed by the Respondents through a Replying Affidavit sworn by Joyce Muthoni on 24th April 2026, on behalf of the other Respondents. 7. The Respondents contend that the lower court had previously directed the Applicants on 23rd September 2025 to file a formal application for a stay of proceedings, an opportunity the Applicants slept on until one day before a slated hearing date on 19th March 2026 when they brought this application. 8. The Respondents argue that the Applicants have effectively deserted the appeal since its institution and have failed to prosecute it, rendering the current application a mere delaying tactic and an abuse of the court process. 9. The Respondents contend that they will suffer great prejudice if the stay of proceedings is granted, noting that the main suit was instituted in 2022 and has been delayed by numerous applications brought by the Applicants. 10. The Respondents further aver that the Applicants have failed to satisfy the mandatory requirements for a stay of proceedings under Order 42 Rule 6(5) of the Civil Procedure Rules. 11. In the alternative, the Respondents pray that should the Court be inclined to grant the stay, the Applicants must be directed to provide security for costs. **Directions** 1. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. I have carefully considered the Notice of Motion dated 18th March 2026, the Supporting Affidavit together with the annexures thereto, the Replying Affidavit sworn on behalf of the Respondents, and the rival written submissions filed by the respective parties. Having done so, I am of the considered view that the sole issue falling for determination is **whether the Applicants have established a proper basis for the grant of an order staying the proceedings in Kajiado CMELC No. E002 of 2022 pending the hearing and determination of this appeal.** **Analysis and Determination** 1. A stay of proceedings is one of the most far-reaching discretionary remedies that a court may grant. Unlike a stay of execution, which merely suspends the enforcement of a decree, a stay of proceedings arrests the very process through which a court exercises its adjudicative function. Such an order inevitably delays the determination of the substantive dispute and affects not only the opposing party but also the public interest in the expeditious disposal of cases. Consequently, courts have consistently held that the jurisdiction to stay proceedings must be exercised sparingly, cautiously and only in exceptional circumstances. 2. The legal foundation for the grant of a stay of proceedings is found under **Order 42 Rule 6 of the Civil Procedure Rules**.Although Order 42 Rule 6 principally governs applications for stay of execution, Kenyan courts have consistently held that the jurisdiction to grant a stay of proceedings is derived both from that provision and from the Court's inherent jurisdiction preserved under **Section 3A of the Civil Procedure Act**, whose objective is to ensure that the ends of justice are met and to prevent abuse of the process of the court. 3. The guiding principles applicable to applications for stay of proceedings were authoritatively stated in ***RE*** ***Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000***, where Ringera J. (as he then was) observed: ***"As I understand the law, whether or not to grant a stay of proceedings 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. 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 whether it is an arguable one—not whether it will probably succeed—the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously."*** 1. The foregoing principles have repeatedly received approval by the superior courts, including the Court of Appeal in ***Kenya Wildlife Service v James Mutembei [2019] eKLR***, where the Court reiterated that a stay of proceedings is a grave judicial intervention which ought only to be granted where sufficient cause has been demonstrated. 2. The **Halsbury’s Law of England, 4th Edition. Vol. 37 at** page 330 and 332, elaborates that: ***“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.”*** 1. Similarly, in ***David Morton Silverstein v Atsango Chesoni [2002] eKLR***, the Court emphasized that: ***"The power to grant a stay of proceedings is a discretionary power which should be exercised sparingly and only in exceptional cases."*** 1. The Applicants challenge the learned trial magistrate's refusal to join the proposed third parties despite evidence allegedly demonstrating that the third parties sold the suit property to the Applicants. According to the Applicants, the proposed third parties executed a sale agreement and obtained the requisite Land Control Board consents and therefore their participation in the proceedings is indispensable. 2. On the other hand, the Respondents submit that the appeal lacks merit and merely seeks to prolong litigation that commenced way back in the year 2022. 3. At this interlocutory stage, this Court is not called upon to determine the merits of the appeal. The Court is only required to determine whether the appeal raises at least one bona fide issue deserving judicial consideration. 4. A perusal of the Memorandum of Appeal reveals several complaints directed at the exercise of discretion by the learned trial magistrate in declining to permit third-party proceedings. Whether the learned magistrate correctly appreciated the legal threshold governing joinder of third parties under the Civil Procedure Rules, and whether sufficient material had been presented to warrant such joinder, are questions that cannot be described as frivolous. They are legitimate legal questions that require determination by the appellate court. 5. Accordingly, I am satisfied that the appeal is arguable. However, the existence of an arguable appeal alone does not automatically entitle an applicant to a stay of proceedings. 6. The chronology emerging from the record is instructive. The impugned ruling was delivered on **1st July 2025**. The appeal was filed on **29th July 2025**. The Respondents have exhibited proceedings showing that on **23rd September 2025**, the subordinate court expressly directed the Applicants to move the appellate court for a stay of proceedings if they desired one. 7. Despite that direction, the Applicants took no action until **18th March 2026**, nearly six months later, when they filed the present application one day before the hearing of the suit scheduled for **19th March 2026**. 8. The Applicants have offered no satisfactory explanation whatsoever for this prolonged inactivity. Delay is not measured merely by the passage of time but by whether the delay has been reasonably explained. Courts exercising equitable discretion expect litigants to act with diligence. An unexplained delay inevitably undermines the bona fides of the application. 9. The Applicants' conduct demonstrates that after filing the appeal they took no meaningful steps towards prosecuting either the appeal or the present application until the eve of the hearing in the subordinate court. Such conduct lends credence to the Respondents' argument that the application is reactive rather than proactive. 10. I therefore find that the present application was not brought expeditiously. 11. The Applicants argue that unless proceedings are stayed, the lower court may proceed to hear and determine the suit before the appeal is concluded, thereby rendering the appeal academic. I respectfully disagree. The subject of this appeal is not the final determination of proprietary rights over the suit land. Rather, it concerns the interlocutory refusal by the trial court to allow third-party proceedings. Even if the subordinate court proceeds with the hearing and ultimately renders judgment, the Applicants' appellate rights remain intact. Should this Court eventually find that the refusal to join the proposed third parties constituted an error affecting the fairness of the proceedings, it retains the jurisdiction to set aside the proceedings, reverse the judgment where appropriate, or remit the matter for retrial with appropriate directions. 12. Consequently, the appeal cannot properly be said to be rendered nugatory merely because the hearing proceeds. The Court of Appeal in ***Kenya Wildlife Service v James Mutembei [2019] eKLR*** cautioned that the mere existence of an appeal is insufficient justification for halting proceedings. The applicant must demonstrate real prejudice beyond the ordinary inconvenience associated with litigation. 13. No such exceptional prejudice has been demonstrated in the present case. This court must undertake the balancing act. On one hand are the Applicants' appellate rights. On the other are the Respondents' constitutional entitlement to have their dispute determined without unreasonable delay. Article 159(2)(b) of the Constitution commands that ***Justice shall not be delayed.*** 14. Similarly, **Sections 1A and 1B of the Civil Procedure Act** establish the overriding objective of civil litigation, namely the just, proportionate, efficient and expeditious determination of disputes. The present suit has remained pending since **2022**. The record demonstrates that interlocutory applications have significantly delayed its hearing. Staying the proceedings at this stage would inevitably postpone the determination of the substantive dispute for an indeterminate period while the appeal is prosecuted. 15. The Court must also consider the efficient utilization of judicial resources. Courts ought to discourage piecemeal litigation where an interlocutory appeal unnecessarily interrupts the trial process unless continuation of the proceedings would occasion manifest injustice. 16. Having weighed all the relevant considerations, I find that the prejudice likely to be suffered by the Respondents through further delay substantially outweighs any prejudice that the Applicants may suffer if the proceedings continue. 17. The interests of justice therefore favour allowing the subordinate court to proceed with the hearing while preserving the Applicants' undiminished right to prosecute their appeal. 18. Accordingly, I find that although the appeal is arguable, the Applicants have failed to demonstrate exceptional circumstances warranting the extraordinary remedy of a stay of proceedings. They have equally failed to explain the considerable delay in bringing the present application or to establish that the appeal would be rendered nugatory if the subordinate court proceeds with the hearing. The balance of justice and the overriding objective of civil litigation favour the expeditious determination of the suit pending before the trial court rather than its further interruption. 19. The Notice of Motion dated 18th March 2026 is therefore devoid of merit and cannot succeed. It is hereby dismissed with costs. **It is so ordered.** **Dated, Signed and Delivered at Kajiado Virtually this 21st Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Kariuki for the Appellants/Applicants Ms. Gor h/b for Ms. Matata for the Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**