Josephat Doe Okiria v Etyang Singa Omunyin

the Ruling of the Applicant’s application dated 23rd November 2024 which intends to be on 17th December 2025 by the Honourable Lady Justice Mwanaisha Shari and all consequential orders in Bungoma High Court Succession Cause no. 525 of 2012 be stayed forthwith pending the hearing and determination of the intended appeal 3. The Applicant’s dismissed application dated 3rd November 2025 be allowed and the trial Judge be deemed the excused for handling the matter and or writing of the ruling as pleaded here in pending determination of the main appeal and the ruling delivered be deemed reviewed and/ or set aside forthwith. 4. Pending the hearing and determination of the orders issued by the Honourable Lady Justice Mwanaisha Sharif be revealed and or set aside pending hearing and determination of the intended appeal. 5. Any other orders deemed expedient in the circumstance. 6. Costs of the application will be provided for. 2. It is evident that some of the orders sought are nal in nature, and can only be considered and determined upon during the hearing of the substantive appeal and not at this stage. The only prayer that is properly before us as an interlocutory prayer is that of stay of execution of the ruling delivered on 24th November 2024 in Bungoma High Court Succession Cause No. 525 of 2012 and all consequential orders, and of delivery of the ruling of the applicant’s application dated 23rd November 2024 pending the hearing and determination of the applicant’s intended appeal. 3. The applicant explained in his adavit in support of the application that he had led an objection dated 23rd November 2024 in the Bungoma High Court Succession Cause No. 525 of 2012, but that the trial Judge prioritised the hearing of an application led by another objector, and directions as regards the said hearing were taken in his absence. From the impugned ruling, it appears that the applicant made an oral application on 23rd September 2025 for the recusal of the trial Judge, which was declined on the same day, and the Judge directed that the applicant’s objection dated 23rd November 2024 proceeds to hearing, and reserved a ruling on the objection for 17th December 2025. The applicant consequently led an application dated 3rd November 2025 seeking the recusal of the trial Judge and review of the proceedings of 30th September 2025, which was declined in the ruling of 24th November 2025 on the basis that the trial Court was functus ocio. 4. The applicant further deponed that he lodged a complaint with the Judicial Service Commission, which the High Court acknowledged but disregarded in its ruling. He expressed apprehension that he would not receive a fair hearing and sought intervention from this Court to review the learned Judge’s conduct and ruling, arguing that unless a stay is granted, he would suer prejudice, as the ruling on his objection was scheduled for 17th December 2025. The applicant attached a Memorandum of Appeal in which he stated that he had raised triable issues and set out ten grounds of appeal challenging the ruling delivered on 24th November 2025. 5. Etyang Singa Omunyin, the respondent herein, opposed the application in a replying adavit sworn on 15th December 2025, and averred that the application was defective and bad in law, as it lacked the impugned orders or decree; and was intended to delay and interfere with the determination of his application pending before the High Court, for which a ruling was scheduled on 17th February 2026. He further contended that the issues raised, particularly on recusal, were res judicata, having already been determined in a prior ruling delivered orally by the learned Judge of the High Court on 23rd November 2024. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2071/eng@2026-05-22 2

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6. We heard the application on 21st April 2026 on this Court’s virtual platform. Mr. Josephat Doe Okiria , the applicant, was present in person while there was no appearance for the respondent despite service of the hearing notice on their advocates. Upon inquiry on the status of his objection proceedings in the High Court, the applicant conrmed that the learned Judge of the High Court whose recusal he sought had since been transferred to another station, and had since delivered the ruling on his objection. The applicant nevertheless indicated that he was keen to proceed with the hearing of his application, as there were legal issues he wanted this court to determine. He placed reliance on his written submissions dated 27th February 2026 in this regard. 7. The applicant urged two main issues in his submissions, namely, whether the trial Judge acted without jurisdiction by reviewing her own decision while the matter was pending before the Court of Appeal; and whether the application meets the threshold for grant of the orders sought. On the rst issue, the applicant submitted, while citing various judicial authorities, that once the trial court had rendered its decision and the matter was subject to appeal, it became functus ocio, and jurisdiction moved to the Court of Appeal, and that the learned trial Judge therefore violated the authority of this Court. As to whether the application had met the threshold for the grant of the orders sought, the applicant submitted that he had demonstrated lack of jurisdiction by the trial Court, violation of the legal principles governing nality of decisions, and encroachment on the appellate jurisdiction, and the application was therefore proper, justied and merited. He accordingly urged us to intervene and uphold the rule of law and judicial authority. 8. The principles applicable in exercising this Court’s discretion under Rule 5 (2) (b) of the Court of Appeal Rules of 2022 to grant an order of stay are well settled. An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, unless an order of stay is granted the intended appeal would be rendered nugatory. These principles have been restated and amplied by this Court in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR. In addition, this Court exercises original jurisdiction under Rule 5(2)(b) as held in Ruben & 9 others v Nderitu & another (1989) KLR 459. 9. To the extent that the applicant has questioned the jurisdiction of the trial Court to hear his application while his appeal was pending in this Court, we are persuaded that he has an arguable issue to argue in his intended appeal. We say so bearing in mind that an arguable appeal is not one which must necessarily succeed, but one which is not frivolous and merits to be argued fully. Further, it is sucient if the appeal raises only one triable issue. This Court in this regard held as follows in Somak Travels Ltd vs Gladys Aganyo [2016] eKLR: “ It is trite law that the applicant need not show a multiplicity of arguable points. One arguable point is sucient to satisfy the rst principle. In addition, an arguable point is not necessarily one that must succeed on appeal, but one that merits a consideration and determination by this Court. While it would have been desirable for the applicant to annex a draft proposed memorandum of appeal to its application, we are of the view that the omission to do so is not fatal, and is curable in so far as the applicant has suciently set out its grievances on the face of the application. That is the case in this application.” 10. On whether his appeal will be rendered nugatory if a stay order is not granted, it was held in Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others [supra] that whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed or injuncted, if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved. The applicant has in this regard conceded that the trial Judge whose recusal he sought has since been transferred to another station, and the ruling he also sought to arrest has since been delivered. To this https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2071/eng@2026-05-22 3

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extent the application is overtaken by events, and there is nothing left to stay. Lastly, the issue whether or not the trial Judge acted within her jurisdiction is one that can only be decided upon the hearing of the substantive appeal. For these reasons, it is our nding that the applicant has not demonstrated that his appeal will be rendered nugatory if stay is declined. 11. The applicant has therefore not met the required threshold for stay orders, and the application dated 5th December 2025 is accordingly dismissed with no order as to costs, given the circumstances giving rise to the said application. 12. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 22ND DAY OF MAY 2026. P. NYAMWEYA. ……………………………. JUDGE OF APPEAL R. NGETICH ……………………………… JUDGE OF APPEAL RADIDO S.OKIYO …………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2071/eng@2026-05-22 4

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