Joseph v Soy & another (Civil Application E499 of 2024) [2025] KECA 1115 (KLR)
The bottom line
#The Court of Appeal refused to pause a Kshs 23.7 million default judgment, confirming stays of proceedings are granted only in rare, exceptionally strong cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if the appeal were to succeed, it would be rendered nugatory absent an order of stay of proceedings
Key legal issues
#Whether the intended appeal was arguable
The intended appeal, which merely attacked the exercise of discretion in refusing to set aside a regular default judgment, was not shown to be arguable; no affidavit from the previous advocate explained the alleged mistake, and the natural justice complaint was untenable given admitted service
The applicant was appealing against the exercise of discretion, which the appellate court will disturb only in exceptional cases. The judgment was a regular one since service was admitted. No affidavit from the former advocates explained the mistake said to have prevented entry of appearance, and a party admitting service cannot claim a natural justice breach. Where discretion is sought to challenge discretion, a high degree of assurance of error is needed.
Whether the appeal would be rendered nugatory if stay were refused
The nugatory limb failed because there was nothing on record showing the respondents were impecunious or incapable of refunding the decretal amount; the applicant made only a fleeting submission and did not aver it on oath
The applicant's supporting affidavit did not aver that the respondents were incapable of refunding the decretal amount; the point was raised only fleetingly in written submissions. The respondents expressly contended they had the means to repay if the need arose. Without a serious suggestion of incapacity to refund, execution of the judgment would not render the appeal nugatory.
The exceptional nature of stay of proceedings as a remedy
Stay of proceedings is a grave interruption of a party's right to litigate to trial and should not be imposed unless the proceedings beyond reasonable doubt ought not to continue
Relying on Katangi Developers Ltd v Prafula Enterprises Ltd, which approved Halsbury's Laws of England (4th edn, vol 37, para 330), the court reinforced that stay of proceedings is a serious, grave and fundamental interruption in the right to conduct litigation towards trial on the substantive merits, and is therefore granted only in exceptional, clear and compelling cases.
Legal principles established
#- The Court of Appeal will not readily interfere with the exercise of discretion by the trial court except in exceptional cases
- A stay of proceedings under rule 5(2)(b) will be granted only in an exceptional, clear and compelling case
- Where a party is asked to have discretion exercised in its favour in order to challenge the exercise of discretion by the trial court, a high degree of assurance of error is required
- A party who admits service of summons but fails to enter appearance cannot allege violation of natural justice
Court orders
#- 1.Application for stay of proceedings dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kajiado
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Order of stay of proceedings pending appeal
The applicant failed to satisfy both limbs of rule 5(2)(b): the appeal was not shown to be arguable and the nugatory-ness limb was not demonstrated, stay being granted only in exceptional, clear and compelling cases
Costs
Application dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The efiect is that this application is hereby dismissed with costs to the respondents. It is so ordered.
we are not satisfied that the applicant has met both conditions for grant of an order of stay of proceedings under rule 5(2) (b) of the Court of Appeal Rules
this Court will not readily interfere with exercise of discretion by the trial court except in exceptional cases
this Court will not grant an order of stay of proceedings except in an exceptional clear and compelling case
it does not lie in the mouth of a party who admits having been served with summons but failed to enter appearance and filed defence, to allege that the rules of natural justice were violated
Issues in the judgment
#Recurring typographical errors in the judgment text, e.g. 'sermons' for 'summons' and 'efiect' for 'effect'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph v Soy & another (Civil Application E499 of 2024) [2025] KECA 1115 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1115/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.