https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12692

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. 350 OF 2025** **ESTHER WANGECHI NG'ANG'A.....................APPELLANT/APPLICANT** **VERSUS** **SHARON WAMBUI MAINA..............................................RESPONDENT** ***(Being an Appeal arising from the Ruling of the Small Claims Court in Milimani Small Claims Court Claim No. E17262 of 2025 delivered on 15th October 2025)*** **RULING** **Background** 1. The dispute herein arose from an agreement for the sale of **Plot No. 051, Kangundo**. 2. According to the Applicant, the Respondent paid a sum of **Kshs. 550,000/=** towards the purchase price. A dispute subsequently arose concerning ownership of the property, the involvement of a third party and an alleged addendum requiring refund of the monies paid. 3. The Respondent instituted proceedings before the Milimani Small Claims Court in Claim No. E17262 of 2025 seeking recovery of the sums allegedly paid. 4. The Applicant raised a Preliminary Objection dated 29th September 2025 challenging the jurisdiction of the Small Claims Court. The Preliminary Objection was dismissed on 15th October 2025. 5. Aggrieved by that ruling, the Applicant lodged the present appeal and filed the instant application seeking stay of proceedings pending the determination of the appeal. 6. The Small Claims Court proceedings had already been heard and were awaiting judgment when this Court issued interim orders. **The Application** 1. This ruling is therefore in respect to the Notice of Motion dated 4th November 2025 wherein the Appellant/Applicant principally seeks an order to stay proceedings in Milimani Small Claims Court Claim No. E17262 of 2025 pending the hearing and determination of both the application and the appeal. 2. The application is premised on the grounds set out on its face and the supporting affidavit of the Applicant. The Applicant contends that the appeal raises substantial questions regarding the jurisdiction of the Small Claims Court to entertain the underlying dispute. 3. The Respondent opposed the application and filed written submissions dated 16th December 2025. 4. The application was canvassed by way of written submissions as summarized hereinbelow. **The Applicant's Submissions** 1. The Applicant submitted that the appeal raises a serious jurisdictional question which goes to the root of the proceedings. It was submitted that the dispute before the Small Claims Court concerns land ownership and contractual obligations arising from a land sale transaction. It was submitted that such matters fall outside the jurisdiction conferred upon the Small Claims Court by the Small Claims Court Act. 2. Reliance was placed on **Section 13(5) of the Small Claims Court Act**, which excludes claims founded upon disputes over title to or possession of land and the decision in ***Akinyi vs. Mshila* (Civil Appeal E098 of 2024) [2025] KEHC 2659 (KLR)** where the High Court reiterated that the Small Claims Court lacks jurisdiction over disputes concerning title to or possession of land. 3. The Applicant further relied on ***Ochieng vs. Mshila* (Civil Appeal E099 of 2024) [2025] KEHC 2660 (KLR)** where the Court reaffirmed the cardinal principle that jurisdiction is everything and without it a court must down its tools. 4. The Applicant contended that unless the trial court proceedings are stayed, the appeal will be rendered nugatory because judgment may be delivered before the appellate court determines the question of jurisdiction. 5. Reliance was also placed on ***Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others* [2014] eKLR** for the proposition that courts should exercise discretion in a manner that safeguards substantive justice. 6. The Applicant further cited ***Nyasimi vs. Huyer & 3 Others* [2024] KEHC 9064 (KLR)** and submitted that a stay is necessary to preserve the efficacy of the appeal and prevent prejudice. 7. The Applicant therefore urged the Court to stay the proceedings pending determination of the appeal. **The Respondent's Submissions** 1. The Respondent opposed the application and submitted that it is an afterthought solely intended to delay the conclusion of the Small Claims Court proceedings. 2. The Respondent traced the history of the matter and submits that the claim was filed on 30th October 2024. 3. It was submitted that the Applicant repeatedly sought adjournments to facilitate settlement discussions and thereafter sought additional adjournments on grounds of illness. 4. According to the Respondent, once those indulgences were granted and the matter fixed for hearing by consent, the Applicant raised a Preliminary Objection which was ultimately dismissed. 5. The Respondent pointed out that on the hearing date both parties agreed that the matter proceeds under Section 30 of the Small Claims Court Act and the matter was subsequently fixed for judgment. 6. The Respondent argued that the present application was filed one day before the scheduled hearing and was calculated to derail the proceedings. Reliance was placed on ***Kariuki vs. Mutoko & 2 Others* [2024] KEHC 822 (KLR)** for the proposition that unjustified delay and repeated indulgences should not be condoned. 7. The Respondent further relied on ***Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others* [2014] eKLR** and submitted that court directions and timelines are not issued in vain and that parties who disregard them do so at their own peril. 8. It was also argued that the application constitutes an abuse of process. Reliance is placed on ***Nyasimi vs. Huyer & 3 Others* [2024] KEHC 9064 (KLR)** where the Court observed that last-minute applications intended to derail proceedings may amount to abuse of process. 9. The Respondent further submitted that the application is premature because the Small Claims Court had not rendered its final judgment and the Applicant retained the right to challenge any final decision through the ordinary appellate process. 10. Reliance was placed on ***Kenya Power & Lighting Company Limited vs. Benzene Holdings Limited T/A Wyco Paints* [2016] eKLR** where the Court cautioned against interlocutory intervention where issues could adequately be addressed after final determination. 11. The Respondent urged the Court to dismiss the application and direct the Small Claims Court matter to proceed to judgment without further delay. **Analysis and Determination** 1. Having considered the application and the submissions of the parties, I find that the following issues arise for determination: 2. ***Whether the appeal raises an arguable issue concerning jurisdiction.*** 3. ***Whether the Applicant has established sufficient grounds for stay of proceedings pending appeal.*** 4. The Applicant's appeal challenges the decision of the Small Claims Court dismissing a Preliminary Objection on jurisdiction. Jurisdiction is a threshold issue and the celebrated decision in ***Owners of the Motor Vessel 'Lillian S' vs. Caltex Oil (Kenya) Ltd* [1989] KLR 1** established that jurisdiction is everything and without it a court has no power to take even one further step. 5. The Applicant argued that the dispute concerns ownership and title to land and therefore falls outside the jurisdiction of the Small Claims Court. 6. The Respondent, on the other hand, contended that the claim is essentially for refund of monies paid under a contractual arrangement and falls squarely within the jurisdiction of the Small Claims Court. 7. Without making definitive findings that may prejudice the appeal itself, this Court is satisfied that the question whether the dispute concerns merely recovery of monies or whether it substantially implicates title to land is an arguable issue deserving appellate consideration. 8. The Court therefore finds that the appeal is not frivolous. 9. The principles governing stay of proceedings differ from those applicable to stay of execution as a stay of proceedings is a grave remedy because it interrupts a litigant's right to have his or her case heard and determined expeditiously. 10. The Court must therefore balance competing interests, namely; the right of the Appellant to pursue a meaningful appeal, the right of the Respondent to expeditious disposal of the suit and the wider interests of justice. 11. The Court notes that the appeal challenges jurisdiction itself. This means that if the Small Claims Court lacks jurisdiction, any proceedings undertaken thereafter would be a nullity. 12. Conversely, if the proceedings are allowed to continue to judgment before the jurisdictional appeal is determined, the appeal may become largely academic and the parties may incur unnecessary expense. 13. I also note that the matter in the Small Claims Court had substantially progressed and was awaiting judgment. Ordinarily, courts are reluctant to halt proceedings at such an advanced stage. However, where the pending appeal concerns jurisdiction, different considerations arise because jurisdiction is foundational and cannot be cured by consent, acquiescence or waiver. 14. In the circumstances of this case, I am persuaded that preserving the subject matter until determination of the appeal will better serve the interests of justice. 15. I therefore find that there is sufficient cause to grant a limited stay of proceedings. 16. Having considered all the material presented before the Court, I find that the appeal raises a bona fide and arguable jurisdictional question which ought to be determined before further proceedings are undertaken in the Small Claims Court. 17. Accordingly, I make the following final orders: 18. ***The Notice of Motion dated 4th November 2025 is hereby allowed.*** 19. ***There shall be a stay of proceedings in Milimani Small Claims Court Claim No. E17262 of 2025 pending the hearing and determination of the appeal.*** 20. ***The Appellant shall file and serve the Record of Appeal within thirty (30) days from the date hereof.*** 21. ***The appeal shall thereafter be fast-tracked and mentioned before the Deputy Registrar for directions.*** 22. ***In the event of default in complying with Order (3) above, the stay granted herein shall automatically lapse.*** 23. ***Costs of the application shall abide the outcome of the appeal.*** It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**