Osumo v County Government of Nyamira (Civil Appeal E029 of 2026) [2026] KEHC 13255 (KLR) (30 July 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCA E029 OF 2026** **BETWEEN** **BENARD MANGAA OSUMO.........................APPELLANT/APPLICANT** **AND** **COUNTY GOVERNMENT OF NYAMIRA........................RESPONDENT** **RULING** 1. The Appellant's Notice of Motion dated 23rd June 2026 seeks an order staying the proceedings in Nyamira MCCC E221 of 2024 pending the hearing and determination of this appeal together with costs of the application. The application is expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules. 2. The application is supported by the affidavit of the Appellant sworn on even date. He states that the appeal challenges the ruling delivered on 04th June 2026 dismissing his application to set aside an interlocutory judgment. He contends that he was never served with summons to enter appearance, that the WhatsApp number through which service was allegedly effected does not belong to him, that his draft defence raises triable issues and that unless the proceedings are stayed, the suit will proceed to formal proof thereby rendering the appeal nugatory. He also expresses willingness to comply with any conditions as to security. 3. The Respondent opposes the application through the Replying Affidavit of Dr. Asenath Kenyanya Maobe sworn on 09th July 2026. The Respondent maintains that the interlocutory judgment was regularly entered after proper service upon the Applicant through the telephone number supplied by him, that the trial court correctly dismissed the application to set aside the judgment, that the Applicant has failed to demonstrate substantial loss, has not complied with the order requiring payment of KES.30,000 as costs, and that if stay is granted, he should be ordered to deposit KESs.2,721,976 as security. 4. In its submission dated 21st July, 2026, the Respondent contended that an order for stay of proceedings is an exceptional remedy which should only be granted sparingly. It argued that the impugned ruling merely directed the suit to proceed to formal proof, that the appeal would not be rendered nugatory if the proceedings continued, and that the Applicant had failed to demonstrate any exceptional circumstances warranting the interruption of the proceedings. The Respondent accordingly urged the Court to dismiss the application with costs and, in the alternative, to order the Applicant to furnish security should a stay be granted. 5. Having considered the Motion, the affidavits and the Respondent's submissions, the issue for determination is whether the Applicant has established sufficient grounds for an order staying the proceedings in Nyamira MCCC E221 of 2024 pending the hearing and determination of the appeal. 6. The principles governing an application for stay of proceedings are well settled. Since such an order suspends the progress of a suit, it is granted sparingly and only where the interests of justice so require. In exercising its discretion, the Court considers, among other factors, whether the appeal is arguable, whether it would be rendered nugatory if the proceedings continue, the need for expeditious disposal of litigation and the overall balance of convenience between the parties. These principles were succinctly stated in **Global Tours & Travels Ltd, Nairobi HC Winding Up Cause No. 43 of 2000**, where the Court held that the overriding consideration is whether it is in the interests of justice to grant a stay of proceedings. 7. The Respondent further relied on **David Morton Silverstein v Atsango Chesoni [2002] eKLR**, where the Court identified the factors relevant in determining an application for stay of proceedings, including whether the appeal raises arguable issues, whether it would be rendered nugatory in the absence of stay, whether exceptional circumstances have been demonstrated and whether the application was presented expeditiously. Those principles remain applicable in the exercise of this Court's discretion. 8. One of the considerations in an application of this nature is whether it has been made promptly. In the present case, the impugned ruling was delivered on 4th June 2026, and the application was filed on 23rd June 2026. The Court is therefore satisfied that it was brought timeously. 9. The Applicant's complaint is that the trial court erred in finding that he had been duly served with summons to enter appearance. That issue forms the gravamen of the appeal and cannot properly be determined at this interlocutory stage without prejudging the appeal. It nevertheless raises an arguable point which goes to the regularity of the interlocutory judgment and the propriety of the proceedings founded upon it. 10. The next question is whether allowing the proceedings before the subordinate court to continue would render the appeal nugatory. The impugned ruling declined to set aside the interlocutory judgment and directed that the suit proceed to formal proof. The appeal, however, challenges the finding on service of summons, which is the very foundation upon which the interlocutory judgment rests. Should the subordinate court proceed to formal proof and judgment before the appeal is determined, this Court may ultimately be required to set aside not only the impugned ruling but also the proceedings undertaken thereafter. Such a course would occasion unnecessary expense, duplication of judicial effort and undermine the efficient administration of justice. This approach is consistent with **Timothy Kisina Kithokoi v Elijah Kitele & another [2022] KEELC 1471 (KLR)** and **Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR)**, where it was held that a stay of proceedings should issue only where the interests of justice so demand. 11. The Applicant further contends that unless the proceedings are stayed, the appeal will be overtaken by events. In the circumstances of this case, that apprehension is well founded. The prejudice likely to be suffered is not merely financial but procedural. If the suit proceeds to formal proof and judgment before the appeal is heard, the Applicant may be deprived of the practical benefit of a successful appeal and the Court may be compelled to undo proceedings that could otherwise have been avoided. As observed in Kenya Shell Ltd v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), substantial loss is the cornerstone of an application for stay. The Court is satisfied that the risk of unnecessary proceedings and the possibility of rendering the appeal largely academic constitute substantial loss sufficient to warrant the exercise of its discretion. 12. Weighing the competing interests of the parties, the Court is satisfied that preserving the status quo pending the determination of the appeal will better serve the interests of justice than allowing the proceedings before the subordinate court to continue. Although the Respondent is entitled to an expeditious determination of its claim, the delay occasioned by a stay is outweighed by the prejudice that the Applicant is likely to suffer if the appeal succeeds after the subordinate court has proceeded to formal proof and judgment. 13. Accordingly, the Notice of Motion dated 23rd June 2026 is merited and is hereby allowed. 14. **There shall be a stay of proceedings in Nyamira MCCCE221 of 2024 pending the hearing and determination of this appeal.** 15. **The Appellant shall file and serve the Record of Appeal within thirty (30) days from the date hereof.** 16. **The appeal shall be disposed of by way of written submissions.** 17. **The matter shall be mentioned before the Deputy Registrar on 12th October 2026 to confirm compliance with directions** 18. **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**