Kariuki & another v Matulu & 4 others (Suing as the Administrators of the Estate of the Late Mkuthi Ngovi) (Civil Application E697 of 2025) [2026] KECA 842 (KLR)
The bottom line
#Kenya's Court of Appeal paused a Machakos land case because the appellants' documents were missing from the record, protecting their right to a fair appeal.
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 Court should stay the proceedings in Machakos ELC Case No. E015 of 2020 pending the hearing and determination of the intended appeal
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal, if successful, would be rendered nugatory absent a stay of proceedings
Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The appeal is arguable; the applicants raised bona fide grounds including denial of the right to be heard and the refusal to recall the respondents for cross-examination.
The Court examined the draft memorandum of appeal and found the grounds raised - denial of the right to be heard, failure to order recall of the plaintiffs and their witnesses for cross-examination, failure to order a de novo trial, and failure to grant enlargement of time for filing documents - were not frivolous and deserved ventilation before the Court.
Whether the appeal would be rendered nugatory absent a stay of proceedings
Yes; the trial hearing would proceed on 20th April 2026 while the applicants' documents were not on record, and that assertion was unrebutted.
The Court accepted that if the hearing scheduled for 20th April 2026 proceeded without the applicants' documents on record, the substratum of the appeal would be lost. The respondents, though the application was unopposed, did not rebut this assertion, so the nugatory limb was satisfied.
The legal standard governing stay of proceedings pending appeal
Stay of proceedings is discretionary, granted only in exceptional circumstances, because it interferes with trial schedules and the right to a fair hearing under Article 159(2)(d).
The Court distinguished stay of proceedings from stay of execution, noting that a stay of proceedings is a grave judicial action impinging on access to justice, the right to be heard without delay and the right to a fair trial, hence the high and stringent test. Each case depends on its own facts and no principle bars stays entirely.
Legal principles established
#- Stay of proceedings is discretionary and may only be granted in exceptional circumstances because it derails pending proceedings and interferes with the trial court's hearing schedule.
- An applicant for stay of proceedings under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if the stay is not granted.
- An arguable appeal need not be one that must succeed; it suffices that it raises at least a single bona fide point deserving of full judicial consideration.
- The test for stay of proceedings is high and stringent because a stay seriously interferes with a litigant's right to conduct litigation and to a fair trial without delay.
- The power to stay proceedings pending appeal is discretionary and must be exercised on the facts and circumstances of each case.
Court orders
#- 1.Stay of proceedings in Machakos Environment and Land Court Case No. E015 of 2020 pending the hearing and determination of the substantive appeal, granted in terms of prayer 3 of the Notice of Motion
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Machakos ELC Case No. E015 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
From the foregoing, it is our considered view that the applicants’ application has merit and the same is allowed in terms of prayer 3 thereof. The costs of the application shall abide the outcome of the intended appeal.
It is trite that stay of proceedings is discretionary and may only be granted in exceptional circumstances.
an arguable appeal is not one that must succeed, but one that raises at least a single bona fide point deserving of full judicial consideration
Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay, and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent.
The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the Court's own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts…
Issues in the judgment
#The judgment gives conflicting dates for the trial court hearing it seeks to stay: the applicants' submissions refer to a hearing on 20th April 2026, but the Court's nugatory analysis refers to 26th April 2026.
The judgment does not name the respondents or interested parties by name, and the parties array in the title could not be reconstructed from the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & another v Matulu & 4 others (Suing as the Administrators of the Estate of the Late Mkuthi Ngovi) (Civil Application E697 of 2025) [2026] KECA 842 (KLR)", Case Analysis (2026). Notice of Motion dated 20th November 2025 (rule 5(2)(b) application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/842/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.