https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4790

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLA/E053/2025 NYATI AUTOPARTS LTD VS STELLA WANDOE RULING Introduction The application before me is dated 1st December 2026 seeking an Order of Stay of Proceedings in CMELC No 33 of 2025 Nyati Auto Parts Ltd -Vs- Stella Wandoe, pending the hearing and determination of this Appeal and that the costs of this Application be awarded to the Appellant. The application is made on grounds that the Appellant herein being an owner of a residential premise erected on the title C R 43561/1 subdivision 14717 original No. 1296/8 issued a notice to vacate to the tenant. The notice period issued by the landlord lapsed and the tenant refused to vacate the residential house. The appellant filed the suit in the lower court seeking orders inter- alia to evict the trespasser (former tenant) from the premises. That in the subordinate court, the appellant filed an application dated 28/03/2025 seeking mandatory orders of injunction against the trespasser (former tenant). The application was heard, the subordinate court determined the application through a ruling rendered on 4th July 2025. That being aggrieved with the decision by the honourable magistrate of 24th July 2025, the appellant filed memorandum of appeal dated 13th august 2025 challenging the said decision on the grounds inter alia that the honourable court disregarded the appellants written submissions dated 2nd May 2025. Moreover, that the Honourable Magistrate misapprehended the application before her thus rendered defective decision dated 24/7/2025. The appellant contends that the Honourable Court erred by failing to address its mind to the fact that the respondent was a trespasser having been served with a notice and the n otice period had since expired . The appellant contends that the court erred in equating a trespasser to tenant and assigning rights of a tenant to a trespasser consequently rejecting a property owner's application for its use and control and eviction of a trespasser from the said property and that the decision of this court has a huge bearing on the primary proceedings, it is thus prudent that the primary proceedings be in abeyance. The appeal herein will be rendered nugatory if stay of proceedings is not granted . That it is only fair and in the interest of justice, that the orders sought be allowed. The application is supported by the affidavit of Shahed Shamsu Deen Kashmir the Managing Director who states that the Appellant/Applicant herein being an owner of a residential premise erected on the title C.R 4356 1 1 subdivision 14717 original No. 1296J8 issued a notice to vacate to the tenant. The notice period issued by the landlord lapsed and the tenant refused to vacate the residential house. Consequently the landlord filed suit seeking orders inter- alia to evict the trespasser from the premises. The landlord filed an application dated 28/03/2025 seeking mandatory orders of injunction against the trespasser. The application was heard and determined on 24th July 2025. Being aggrieved with the decision by the Honourable Magistrate of 24th July 2025 their advocate filed a Memorandum of appeal dated 13th August 2025 Challenging the said decision on the grounds inter- alia:- 1. THAT the 1/011011/'(7b/e Court complete/v disregarded the appellants written submissions dated 1/1/1' 2025. 2. THA T the honourable Magistrate misapprehended the application before her thus rendered a defective decision dated 24/7/2025. 3. THAT the honourable court erred by failing to address its mind to the fact that the respondent was (1 trespasser having been served with a notice to vacate (I/N/ the notice period had since expired. 4. THAT the honourable court erred by equating (1 trespasser to a tenant and assigning rights of a tenant 10 a trespasser consequently rejecting (1 property owner's application for use, control and eviction of a trespasser from her property, 5. THA T the honourable court erred in law in dismissing the appellant’s application. The appellant contends that it is in the Interest of justice and fairness that-the proceedings in the subordinate Court in Mombasa CMELC 33 0 2025 be stayed pending the determination of the appeal and that a record of appeal herein has been filed and served. The appeal herein and the primary matter are running concurrently the primary matter is scheduled for hearing on 02/3/2025. The Respondent filed grounds of opposition whose import is that:- 1. THAT the Application is unmerited and misconceived. 2. THAT the threshold for stay of proceedings is quite high because it has serious ramifications such as the effect to completely stall proceedings which in turn interferes with the right of a litigant to conduct litigation, right to be heard without delay and access justice. 1. THAT the Applicant has not demonstrated how his appeal will be rendered nugatory unless a stay of proceedings is granted. 2. THAT the application is an abuse of the process of this Honourable Court and should be dismissed with costs to the Respondent. In the replying affidavit, Stella Wandoe, the respondent states that the present application is a waste of judicial time, improper and has not been brought in good faith and that the Appellant has not met the conditions for stay of proceedings which are an arguable appeal and the likelihood of the appeal being rendered nugatory. The appellant has failed to 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 in a single appeal. The trial court dismissed the Appellant's Application seeking the following orders: 1. A mandatory injunction to vacate the residential premises christened "Legacy Villa" erected on C.R 43561 / I Subdivision No. 1 471 7 original 1296/8 and remove from the suit property all her personal and household belonging and allow the Plaintiff free ingress and egress, use, modification, repairs, occupation and operation of the suit premises pending hearing and determination of this suit. 2. The Defendant whether by herself, servants, agents or employees be restrained by way of injunction from ingress, remaining on the suit premises, laying claim, trespassing thereto or in any way interfering with or wasting the Plaintiff's property christened "Legacy Villa" erected on C.R 43561/1 Subdivision No. 1471 7 original 1 296/8. The court in dismissing the Appellant's application found that the Appellant had not satisfied the conditions for grant of the injunctive reliefs sought. The mandatory injunction sought to evict her is and therefore the trial magistrate found that there was no reason to grant such an injunction to evict a tenant, in her view, that order can be obtained after full trial. The Appellant did not in their application before the trial court establish any exceptional and special circumstances to warrant grant of the mandatory injunction sought. The Appellant's Submissions The appellant submits that he has satisfied the conditions for grant of orders of stay of proceedings pending appeal. He refers to The Black’s Law Dictionary that defines the word “stay” as the postponement or halting of a proceeding, judgment, or the like, ... an order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding. He cites the case of Ndura & Another v Kenya Power and Lighting Company Limited [2024] KEELC 6693 (KLR) the learned judge had the following to say in regards to stay of proceedings: “To stay or not stay proceedings is a discretion on the part of the court to be exercised judicially and on sound grounds. It is a serious, grave and fundamental interruption in the right of parties to be heard expeditiously. In William Odhiambo Ramogi & Others v A.G. & Other, Muslim for Human Rights and Others (IP) [2020] eKLR, the court while quoting from RE Global Tours & Travel Ltd and Kenya Shell Ltd v Kibiru & Another [1986] eKLR guided on the principles to consider as: * 1. That the Applicant should explain why a stay has not been sought in the higher court since the policy is to move to the said court, which is better placed to calibrate its orders. 2. If there is a pending appeal in the higher court. 3. There must be a demonstration that the appeal raises substantial questions to be determined or is otherwise arguable. 4. There must be a demonstration of the appeal being rendered nugatory. 5. Exceptional circumstances must be demonstrated which make the stay of proceedings warranted as opposed to hearing the case concluded safely and all arising grievances taken up on a single appeal. 6. The Applicant must demonstrate that the application was filed expeditiously and without delay.” He further refers to the case of Ndabi v Kimotho & another [2023] KEHC 17717 (KLR) the learned judge observed as follows: - “Stay of proceedings is governed by order 42 rule 6(1) of the civil procedure rules which provides that: - “No appeal or second appeal shall operate as a stay of execution or proceedings 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.” The appellant argues that the appellant moved this court as an appellate court within reasonable time. The application was filed on 1st December 2025 yet the expected hearing date for the primary suit was on 5th March 2026. The applicant, through the memorandum of appeal dated 13th August 2025 has raised serious grounds of appeal on matters of fact and law inter- alia:- * THAT the Honourable Court erred by failing to address its mind to the fact that the respondent was a trespasser having been served with a notice to vacate and the notice period had since expired. * THAT the Honourable Court erred by equating a trespasser to a tenant and assigning rights of a tenant to a trespasser consequently rejecting a property owner’s application for use, control and eviction of a trespasser from her property. The appellant submits that the respondent is a trespasser that is occupying the appellant’s property without the express permission of the appellant. He relies on the case of; Kasturi Limited v Nyeri Wholesalers Ltd [2014] eKLR. The court in this regard held as follows; - “On the counterclaim for vacant possession of the premises, we cite with concurrence the dicta by Lord Halsbury in Jacob v Booths Distillery Co 85 LTD at page 262, where he stated that; - “There are some things too plain for argument. In the present case, it is plain that the tenancy agreement between the parties expired on April 14, 2009 and has never been renewed. It is also proved that the Appellant received a notice for non-renewal of the tenancy. We concur with the learned Judge that the Appellant has no triable issue in the counter claim for vacant possession. It is the duty of the courts to ensure that no individual is prevented from taking possession, and or enjoying their property. The owner of the property was denied taking possession of their property via a court order issued by the subordinate court. The said order is challenged herein. The orders appealed against are likely to be set aside by this court thus the need to stay the proceedings of the subordinate court pending the hearing and determination of this appeal. Respondent's Submissions The respondent submits that stay of proceedings is granted only in exceptional circumstances, which the Appellant has failed to demonstrate. He relies on the treatise of Halsbury's Laws of England, 4th Edition, Vol. 37 at p. 330: the authors say: “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 reasonable doubt, ought not to be allowed to continue… The respondent argues that, courts have held that the threshold for stay of proceedings is high. He cites the dictum of Gikonyo J in Kenya Wildlife Services-vs- James Mutembei (2019) Eklr 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”. The respondent submits that the orders sought in the interlocutory application which was dismissed and is now the subject of the appeal, are capable of being granted after hearing of the substantive suit and parties have had a chance to adduce evidence for court's consideration. The Appellant is not at a loss even if after the substantive hearing, his case is dismissed and the orders sought are not granted, there is still room to appeal. The respondent argues that staying the proceedings in the lower court will impede on the Respondents right to be heard without delay and will only serve to derail the case whereas the orders sought are capable of being granted after a proper hearing of the dispute and all arising grievances be taken up in a single appeal. The respondent cites the Court of Appeal case of M/S Karsan Ramji & Sons Limited v Athumani & another (Suing for and on behalf of the Wamwanyundo Clan & 6 others (Civil Application E034 of 2023) [2024] KECA 563 (KLR) (24 May 2024) (Ruling) the court was not persuaded that the intended appeal if successful would be rendered nugatory in absence stay of proceedings since the Applicant has not established the impediment he stands to face in lodging its claim against the applicant even if by the time the appeal is heard and determined the suit in the trial court will have been determined. The court found that the motion lacked merit and dismissed it with costs. The respondent further cites the case of Ndura & another v Kenya Power and Lighting Company Limited (Environment and Planning Civil Case E001 of 2023) [2025] KEELC 91 (KLR) (22 January 2025) (Ruling) which the Appellant has also cited in their submissions; the court after analyzing several cases that speak to stay of proceedings pending appeal, the learned judge found that the Appellant had failed to meet the threshold under Order 42 Rule 6(1) of the Civil Procedure Rules and held that “the interest of justice militates against staying proceedings herein” and thus dismissed the Application. The respondent submits that the appellant has not explained how and why the Respondent could have been a trespasser while the Appellant, through and through continued to accept and receive rent from the Respondent as a tenant and that by accepting continued rent payment pursuant to the default in payment of rent, the Appellant waived the right to treat the tenant as an unlawful occupant and effectively gave consent to the continued stay. The Appellant's conduct of accepting rent is indicative of an ongoing landlord-tenant relationship. The landlord acquiesced and accepted the tenant and thus should be estopped from referring to the Respondent as a trespasser. The respondent cites the case of Touchstone Properties Ltd v Mwobia (Tribunal Case E297 of 2025) [2025] KEBPRT 343 (KLR) (25 June 2025) (Ruling) the court held that by accepting rent and not objecting to their continued occupation, the Landlord cannot now repudiate the existence of a tenancy relationship. The illegality doctrine does not bar the recognition of an implied tenancy that has arisen through continued possession and payment of rent with the landlord's knowledge and acceptance. The landlord has not disputed that he continued to receive rent from his submissions. The tenant on the other hand has provided proof of them having paid rent to the Landlord which they annexed to their submissions. Accordingly, the Court found that there existed an implied tenancy relationship between the Landlord and the Tenant, arising by operation of law through the conduct of the landlord. Moreover, the trial court was of the view that that the order can be obtained after full trial, especially since an eviction order is a substantive and precipitate order which by its nature is bound to bring forth serious ramifications, thus could not have been granted at an interlocutory stage. The judicial time is precious and ought to be spent wisely and, in this case, the safer side is to hear the matter on merits and conclude it on time, which time is likely to be lost if the orders sought are granted. Based on the foregoing, we urge the court to dismiss the Application dated 1/12/2025 with costs to the Respondent. Analysis and determination In Kenya, it is now trite law that stay of proceedings is a radical, grave, and drastic remedy that interferes with a party's right to access justice and therefore it is granted only in exceptional circumstances especially when the proceedings are frivolous, vexatious, or an abuse of the Court process. Court. The treatise of Halsbury’s Laws of England, 4th Edn. Vol. 37 page 330 and 332 reads 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 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 not 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.” The Court of Appeal in Co-operative Bank of Kenya Limited v Mwangi [2023] KECA 590 (KLR) had the following to say: “ …Whilst this Court has unfettered jurisdiction to issue an order of stay of proceedings, it must be satisfied that there are genuine and compelling grounds to justify such an order, whose effect may be to undermine one of the fundamental constitutional principles, namely that justice shall not be delayed …And as was observed in the case of David Morton Silverstein v Atsango Chesoni (supra), in exercising its discretion to stay proceedings, each case must be considered on its own merits. The grant of stay of proceedings before this Court must be considered within the parameters of rule 5(2) (b) of this Court’s Rules.” In the case of Honourable Lady Justice Lucy Njoki Waithaka & another; V Kenya Magistrates & Judges Association (Interested Party) (Civil Application 8 of 2020) [2020] KECA 571 (KLR) the Court of Appeal stated as follows: “We note that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation….” In the case of Okumu V Agricultural Development Corporation & 9 Others (Civil Appeal (Application) E112 Of 2025) [2026] Keca 23 (Klr) (23 January 2026) . The court of Appeal Stated that:- “From the above excerpts, it is evident that the following principles apply to stay of proceedings: (a) a stay is recognized as a drastic step that interferes with the trial process. (b) it must be reserved for exceptional cases, not granted as a matter of course. 1. any order of stay of proceedings must be accompanied by a reasoned order justifying why the stay is necessary. 2. a delay in a trial has a deleterious effect on the administration of justice, and prolonged stays can lead to witnesses turning hostile or evidence being lost. (e). in determining whether or not to stay proceedings, the peculiar circumstances of each case must be considered. (f) grant or refusal to grant an order of stay of proceedings entails exercise of Court’s discretion. The applicant asserts that the appeal herein will be rendered nugatory if stay of proceedings is not granted . That it is only fair and in the interest of justice, that the orders sought be allowed. In my view, in the event the applicant fails to succeed before the trial court, he has a right to challenge the decision by way of an appeal. This means that his appeal cannot be rendered nugatory because the decision can be reversed on appeal. Stay being an exceptional remedy, it is a requirement is that the applicant demonstrates the existence of exceptional circumstances. “Exceptional circumstances" generally mean rare, extraordinary situations where standard procedures fail, leading to grave injustice or leaving a party remediless, requiring deviation from normal rules for justice. Key precedents emphasize preventing abuse of court processes, and ensuring substantial justice, highlighting situations like gross miscarriage of justice or where no other remedy exists, rather than mere inconvenience. The Supreme Court of South Africa in Tyte Security Services v. Royal Security [SCA, 2024] emphasized that "exceptional circumstances" are not just "unusual" but must be linked to the potential for irreparable harm). No exceptional circumstances have been demonstrated in this case. Stay is a drastic remedy only to be permitted in extremely rare and compelling and exceptional circumstances. Therefore, the other question is whether the applicant has demonstrated genuine and compelling grounds to justify such an order, namely, if the stay is refused the effect will be to undermine one of the fundamental constitutional principles, namely that justice shall not be delayed. The appellant in this case will suffer no prejudice if the order of stay of proceedings is denied because he will be heard by the lower court whatever the outcome and will appeal if he loses, and may raise the same grounds on appeal. The appellant has not demonstrated how the appeal shall be rendered nugatory if stay is not granted as prayed. There is no demonstration that if the proceedings continue, the judgment will destroy the subject matter of the case making a future appeal meaningless. The upshot of the above is that I do find the application without merit and the same is dismissed with costs. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-21 01:41:30