Benard Said Michael Mbarukh & 2 others v Rose Everlyn Tendwa
The bottom line
#A Kenyan land court refused to pause a property case just because a stay application was pending at the Court of 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 this Court has jurisdiction and discretion to stay the proceedings herein
- 2.Whether the Applicant has satisfied the threshold for grant of an order staying proceedings pending determination of the proceedings before the Court of Appeal
- 3.Who should bear the costs of the application
Key legal issues
#Jurisdiction and discretion to stay proceedings
The Court has jurisdiction under Order 42 Rule 6(1) and Section 3A of the Civil Procedure Act, but the discretion is not exercised as a matter of course; the threshold is high and stringent.
Order 42 Rule 6(1) provides that an appeal does not operate as a stay; a party must demonstrate sufficient cause. Section 3A preserves inherent power, but the court cautioned, following Kenya Wildlife Service v Mutembei, that stay of proceedings is materially different from stay of execution and seriously interferes with a litigant's right to be heard without delay.
Whether sufficient cause for stay was established
No. The mere existence of an application before the Court of Appeal, without an actual stay order or demonstrated nexus and concrete prejudice, does not justify halting the suit.
The Applicant exhibited a document purporting to be a Court of Appeal application, but did not demonstrate the nexus between that application and this suit, which concerns parties' rights in the suit property while the appellate application arises from succession proceedings against non-parties. No Court of Appeal order restraining the hearing exists; apprehension of possible eviction is not concrete and irreversible prejudice.
Interests of justice, delay and promptness
The interests of justice favour continuation of the suit; the Applicant's three-month delay in bringing the application and the history of delay weighed against stay.
Article 50(1) and Article 159(2)(b) guarantee expeditious determination, and Sections 1A and 1B of the Civil Procedure Act require just, expeditious resolution. The application was filed about three months after the alleged Court of Appeal application without explanation, and the suit has already been pending a considerable period. Judicial time is a scarce resource.
Costs
Costs follow the event; the Respondents were compelled to oppose an application that failed to meet the threshold.
Under Section 27 of the Civil Procedure Act the general rule is that costs follow the event unless the Court has reason to depart from it. The Applicant did not establish sufficient grounds for the stay sought, so no reason to depart from the general rule arose.
Legal principles established
#- A pending application for stay before an appellate court does not have the legal effect of an actual order of stay; the trial court is not bound to halt proceedings absent an order from the superior court
- Stay of proceedings is a grave judicial action with a high and stringent threshold, distinct from stay of execution
- An application for stay of proceedings founded solely on apprehension or fear is generally insufficient; concrete evidence of harm or prejudice is required
Court orders
#- 1.The Defendant/Applicant's Notice of Motion dated 7th July 2026 is dismissed
- 2.The suit shall proceed to hearing and determination as previously scheduled without further unwarranted interruptions
- 3.Costs awarded to the Plaintiffs/Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution
Relief refused
#Stay of hearing and all further proceedings in the suit pending determination of the Applicant's application in Court of Appeal Civil Application No. E117 of 2026
Mere pendency of an application before the Court of Appeal is not sufficient cause; no demonstrated nexus, concrete prejudice or risk of rendering the appeal nugatory
Costs
Costs awarded to the Plaintiffs/Respondents (costs follow the event under Section 27 of the Civil Procedure Act)
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.
In the result, the Defendant/Applicant's Notice of Motion dated 7th July 2026 is hereby dismissed, the suit shall proceed to hearing and determination as previously scheduled without further unwarranted interruptions, and the costs are awarded to the Plaintiffs/Respondents.
Therefore, I have to distinguish between a pending application seeking stay and an actual order of stay. The former does not have the legal effect of the latter.
It would therefore not be proper for this Court to suspend proceedings merely because an application is pending before another court unless the circumstances demonstrate that such suspension is necessary to avoid injustice, conflicting orders, substantial prejudice or the frustration of the appellate process.
The mere existence of an application before the appellate court does not automatically justify a stay of proceedings before the trial court.
Issues in the judgment
#Succession cause referred to inconsistently as 'Probate and Administration Cause No. 5 of 2013' and 'Succession Cause No. 5 of 2013'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Said Michael Mbarukh & 2 others v Rose Everlyn Tendwa", Case Analysis (2026). ELCLC E023 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6079/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.