Onchiri v County Government of Nyamira (Civil Appeal E044 of 2026) [2026] KEHC 13252 (KLR) (30 July 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCA E044 OF 2026** **BETWEEN** **ZABLON OERA ONCHIRI...............................APPELLANT/APPLICANT** **AND** **COUNTY GOVERNMENT OF NYAMIRA........................RESPONDENT** **RULING** 1. The Appellant's Notice of Motion dated 07th July 2026 seeks an order staying the proceedings in Nyamira MCCC E222 of 2024, County Government of Nyamira v Zablon Oera Onchiri, pending the hearing and determination of this appeal. The Motion is supported by the Appellant's affidavit sworn on the same date. 2. The application arises from the ruling delivered on 04th June 2026, by which the learned trial magistrate dismissed the Appellant's application to set aside the interlocutory judgment entered against him and directed that the suit proceeds to formal proof. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 02nd July 2026, challenging the findings on service of summons, the refusal to set aside the interlocutory judgment and the exercise of discretion by the subordinate court. 3. The Appellant deposes that he was never served with summons to enter appearance and disputes the alleged service by electronic mail. He states that he only became aware of the proceedings after interlocutory judgment had been entered and contends that the draft Statement of Defence raises triable issues deserving determination at a full hearing. He further maintains that unless the proceedings are stayed, the appeal will be rendered nugatory if the subordinate court proceeds to formal proof and judgment. 4. The Respondent opposes the Motion through the Replying Affidavit of Dr. Asenath Kenyanya Maobe sworn on 08th July 2026. She maintains that summons were properly served through the email address supplied by the Appellant in the loan agreement, rendering the interlocutory judgment regular. She further contends that the subordinate court properly exercised its discretion in declining to set aside the judgment, that the Appellant has not demonstrated substantial loss or exceptional circumstances warranting a stay and, in the alternative, prays that the Appellant be ordered to deposit KES. 2,721,976/= as security pending the appeal. 5. In the written submissions dated 21st July 2026, the Respondent argues that a stay of proceedings is an exceptional remedy which should be granted sparingly because it interrupts the expeditious disposal of litigation. It is further submitted that the Appellant has failed to demonstrate that the appeal would be rendered nugatory or that exceptional circumstances exist to justify the orders sought. The Respondent accordingly urges that the application be dismissed with costs or, in the alternative, that security for the entire claim be ordered. 6. The sole issue for determination is whether the Appellant has established sufficient grounds for the grant of an order staying the proceedings in Nyamira MCCC No. E222 of 2024 pending the hearing and determination of the appeal. 7. The Respondent relies on **Global Tours & Travels Ltd, Nairobi HC Winding Up Cause No. 43 of 2000**, where it was held that the grant of a stay of proceedings is an exercise of judicial discretion guided by the interests of justice after considering, among other factors, the need for expeditious disposal of cases, the arguability of the appeal, the efficient use of judicial time and whether the application was brought without unreasonable delay. 8. The present application was filed on 07th July 2026, barely one month after the ruling delivered on 04th June 2026 and shortly after the Memorandum of Appeal dated 02nd July 2026. It cannot therefore be said that the application was brought after unreasonable delay. 9. The Respondent further relies on [**David Morton Silverstein v Atsango Chesoni [2002] KECA 287 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2002/287/eng%402002-03-01)**,** where the court identified the relevant considerations in an application for stay of proceedings, including whether there is a pending appeal, whether the appeal raises arguable issues, whether it may be rendered nugatory if the proceedings continue and whether sufficient cause has been shown for interrupting the progress of the suit. 10. The Memorandum of Appeal challenges the findings on electronic service, the regularity of the interlocutory judgment and the refusal to exercise discretion in favour of setting it aside. Those grounds raise arguable questions which properly fall for determination on appeal. 11. The Respondent also relies on [**Timothy Kisina Kithokoi v Elijah Kitele & another [2022] KEELC 1471 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1471/eng%402022-02-16) and [**Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/10478/eng%402019-01-31) for the proposition that a stay of proceedings is a discretionary remedy granted only in exceptional circumstances. The question, therefore, is whether the circumstances disclosed by the present application warrant the exercise of that discretion. 12. The appeal challenges the foundation upon which the proceedings in the subordinate court are intended to continue. Should the suit proceed to formal proof and judgment before those issues are determined, the appellate court may be required to revisit proceedings undertaken after the ruling under challenge. That outcome would occasion unnecessary expense, duplication of effort and an inefficient use of judicial resources. 13. The Respondent further relies on [**Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/94/eng%401986-07-02) to contend that the Appellant has not demonstrated substantial loss. In the present case, however, the prejudice asserted is procedural rather than financial. The Appellant contends that he was denied an opportunity to defend the suit owing to the impugned interlocutory judgment. If the proceedings continue to judgment before that issue is determined on appeal, the appeal risks being overtaken by events. 14. The Respondent has also urged that, if a stay is granted, the Appellant be ordered to deposit KES. 2,721,976/= as security. However, the application seeks a stay of proceedings rather than a stay of execution. As no decree is sought to be suspended and the suit has not proceeded to formal proof, no sufficient basis has been laid for requiring security at this stage. 15. On costs, the Respondent relies **on** [**Peter Muriuki Ngure v Equity Bank (K) Ltd [2018] KEHC 10038 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/10038/eng%402018-05-03)and section 27 of the Civil Procedure Act. While costs ordinarily follow the event, their award remains discretionary. In the circumstances of this application, costs shall abide the outcome of the appeal. 16. Having considered the Motion, the affidavits, the Respondent’s submissions and the applicable principles of law, I am satisfied that the Appellant has established sufficient cause for the grant of an order staying the proceedings pending the hearing and determination of the appeal. 17. Accordingly, the Notice of Motion dated 07th July 2026 is allowed on the following terms— 18. **There shall be a stay of proceedings in Nyamira MCCC E222 of 2024, County Government of Nyamira v Zablon Oera Onchiri, pending the hearing and determination of this appeal.** 19. **The Appellant shall file and serve the Record of Appeal within 30 days from the date hereof.** 20. **The appeal shall be disposed of by way of written submissions.** 21. **The matter shall be mentioned before the Deputy Registrar on 12th October 2026 to confirm compliance with directions** 22. **Costs of the Notice of Motion shall abide the outcome of the appeal** **DELIVERED AT NYAMIRA THIS 30th DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Hilda** **For Applicant - Mr. Onsongo for Onsongo & Company Advocates** **For Respondent - Ms. Kerubo for the Office of County Attorney**