https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/245

Okiki & another (Suing as the Legal Administrators of the Estate of the Late David Okiki Omanya) v Board of Management Mesabisabi Mixed Secondary School (Civil Case E190 of 2025) [2026] KEMC 245 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEMC 245 (KLR) Republic of Kenya In the Narok Law Courts Civil Case E190 of 2025 EM Mutuku, RM July 3, 2026 Between Mary Atieno Okiki 1st Plaintiff Lenser Anyango Okiki 2nd Plaintiff Suing as the Legal Administrators of the Estate of the Late David Okiki Omanya and The Board of Management Mesabisabi Mixed Secondary School Defendant Ruling Ruling No.2 1.Before court for determination is the Plaintiffs’ notice of motion dated 4th February 2026 amended on 13th April 2026 filed under section 75 of the Civil Procedure Act, Order 43 Rule 1 & 2 of the Civil Procedure Rules, Section 1A, 1B & 3A of the Civil Procedure Act and all other enabling provisions of the law. The application is supported by the affidavit sworn by Kirui Naomi Chelangat on 15th April 2026. By the application, the plaintiffs seeks orders that:1.Spent.2.Spent.3.spent4.This honourable court be pleased to arrest/stay the delivery of judgment in this matter, pending the hearing and determination of the appeal in Narok HCCA NO. E013 of 2026 Mary Atieno & Lenser Anyango Okiki (suing ass the legal administrators of the estate of the late David Okiki Omanya vs. The Board Of Management Mesabisabi mixed secondary school.5.That costs of this application be in the cause. 2.The grounds of the application are that if the matter is not stayed, the plaintiff stands to suffer irreparable prejudice. 3.The application was canvassed by way of written submissions and at the time of writing this ruling only the Defendant had filed its written submissions. Issues For Determination: 4.I have considered the Plaintiffs’ amended application and the affidavit in support thereof, the Defendant’s replying affidavit and written submissions and cited authorities as well as the relevant law. 5.I find that the issues before court for determination are: -a.whether the court should stay or arrest the judgment herein as sought.b.What orders ensue? Analysis And Determination: 6.Leave to appeal having already been granted the plaintiffs’ application majorly seeks arrest of the judgment of the court in this matter pending hearing and determination of an appeal before the High Court. The relevant law on stay of proceedings pending appeal is Order 42 rule 6(1) which provides that:Stay in case of appeal [Order 42, rule 6](1)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.re-opening of their case to call the investigating officer. The application was filed after both parties had closed their respective cases, and, directions as to filing of submissions and a judgment date had been given. 7.From the above provisions of Order 42 rule 6(1), granting or declining to grant an for order stay of proceedings is a discretionary power. In the case of Re Global Tours & Travel Ltd HCWC No.43 of 2000 Ringera, J (as he then was) held that:…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from 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. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously… 8.For the plaintiffs to merit an order for stay of proceedings herein they ought to show that they have an arguable Appeal with high chances of success, that if stay of proceedings is not granted the Appeal will be rendered nugatory. 9.I have had an opportunity to perused the memorandum of appeal filed before the High Court and the Plaintiffs’ major contention is the court’s refusal to re-open their case for the plaintiffs to call additional witnesses after both parties had closed their case and the case scheduled for a judgment. 10.In the case of Stanely Kinyanjui vs. Tony Ketter & 5 Others (2013) eKLR, 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. 11.Further, the Court of Appeal in the case of University of Nairobi vs. Ricatti Business of East Africa (2020) eKLR 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. 12.It would not be accurate in the instant case to say that the Appeal is not arguable. Courts have held that, an arguable appeal is not one which must necessarily succeed, but one which ought to be argued to its logical conclusion. The Appeal in the instant case relates to the question of whether this court erred in declining to re-open the Plaintiffs’ case to allow additional evidence. The Court is of the opinion that the Appeal needs to be determined by weighing the plaintiffs’ contestation and the Trial Court’s reasoning. The Appeal therefore passes the arguability test. 13.In the case of Kenya Wildlife Service vs. James Mutembei [2019] eKLR, Gikonyo J 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 proceedings is high and stringent. 14.What is pending before this court is delivery of a judgment as both parties have closed their cases. Delivery of the judgment will render the appeal nugatory. Accordingly, I find the plaintiffs’ application is merited and allow it with no order as to costs. The delivery of judgment in this suit is stayed pending hearing and determination Narok HCCA NO. E013 OF 2026 Mary Atieno & Lenser Anyango Okiki (suing ass the legal administrators of the estate of the late David Okiki Omanya vs. The Board Of Management Mesabisabi Mixed Secondary School. 15.It is so ordered. READ, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAROK THIS 3RD DAY OF JULY, 2026.E.M. MUTUKURESIDENT MAGISTRATEIn the presence of:Plaintiffs N/ADefendant N/AC/A: Lewis