Chege & another v Kibui (Environment and Land Case 1257 of 2016) [2026] KEELC 2015 (KLR)

the Defendant and culminated in a Judgment delivered on 12th May 2022 in favour of the Plaintifis, wherein the 1st Plaintifi was declared the lawful proprietor of the suit property known as Nairobi/Block 115/146, eviction orders were issued against the Defendant, and a mandatory injunction granted. A decree was subsequently extracted and costs taxed. 5. The Applicant further avers that nearly three (3) years later, the Defendant filed an application seeking to set aside the judgment. The said application was allowed by this Court in a Ruling delivered on 3rd July 2025, thereby setting aside the judgment and the consequential decree and striking out the proceedings leading to the impugned judgment. 6. Being dissatisfied with the said Ruling and Order of 3rd July 2025, the 1st Plaintifi has lodged a Notice of Appeal dated 10th July 2025 and filed on 15th July 2025, and has requested certified copies of proceedings and the ruling. He contends that he has an arguable appeal raising serious issues of law and fact, and that unless proceedings herein are stayed, the intended appeal will be rendered nugatory. He maintains that the application has been brought without undue delay and that it is in the interest of justice that stay be granted. Response 7. The application is opposed by the Defendant/Respondent through a Replying Afidavit sworn on 15th December 2025. The Respondent confirms that he has read the Notice of Motion dated 21st July 2025 and understands that the Applicant seeks a stay of proceedings pending an intended appeal against the ruling delivered on 3rd July 2025. 8. The Respondent avers that the Applicant has merely filed a Notice of Appeal dated 10th July 2025 pursuant to Rule 77 of the Court of Appeal Rules but has neither filed nor served a Memorandum of Appeal nor annexed any draft grounds of appeal. He further states that neither he nor his advocates have been served with any substantive appeal documents. Consequently, the arguability or substance of the intended appeal has not been demonstrated, and in the absence of disclosed grounds of appeal, this Court cannot ascertain whether there exists any bona fide issue capable of justifying the drastic relief of staying proceedings. 9. The Respondent further deposes that the ruling delivered on 3rd July 2025 merely set aside an ex parte judgment that had been entered without his participation and directed that the matter proceeds to hearing on its merits, thereby restoring his constitutional right to be heard. He maintains that continuation of the proceedings will not render the intended appeal nugatory nor prejudice the Applicant in any manner. On the contrary, granting a stay would occasion him substantial prejudice by delaying determination of ownership of the suit property and preventing him from utilizing or dealing with it. He therefore urges the Court to dismiss the application and allow the suit to proceed to hearing. Analysis and Determination 10. I have considered the Notice of Motion dated 21st July 2025, the supporting afidavit and annexures thereto, as well as the Replying Afidavit filed in opposition and the rival submissions. 11. The Applicant seeks a stay of proceedings pending the hearing and determination of an intended appeal against the ruling delivered on 3rd July 2025, by which this Court set aside an ex parte judgment and directed that the suit proceeds to hearing on its merits. 12. Stay of proceedings is not to be granted lightly. In Kenya Wildlife Service v James Mutembei [2019] eKLR, the Court observed: “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, right https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2015/eng@2026-02-12 2

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to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceedings is high and stringent.” 13. Similarly, in Global Tours & Travels Limited (Winding Up Cause No. 43 of 2000), Ringera J (as he then was) stated that in deciding whether to order a stay, the Court should weigh the pros and cons of granting or refusing the order, bearing in mind the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of whether it is arguable, and the overall interests of justice. 14. The principles emerging from these authorities are clear: the Court must be satisfied that the intended appeal is arguable and that the appeal would be rendered nugatory if stay is not granted, while also balancing the constitutional imperative for expeditious disposal of cases. 15. The impugned ruling merely restored the matter for hearing on its merits. It did not order execution, eviction or any irreversible step. The continuation of proceedings does not extinguish the Applicant’s right of appeal. Should the appeal ultimately succeed, appropriate remedies remain available. 16. I am not therefore persuaded that allowing the suit to proceed to hearing would render the intended appeal nugatory. On the contrary, staying the proceedings would delay the determination of a dispute that has been pending since 2016 and would impede the Respondent’s right to have the matter heard on its merits. 17. Weighing the competing interests, and guided by the authorities cited above, I am not satisfied that this is an appropriate case for the exercise of discretion in favour of a stay of proceedings. 18. Accordingly, the Notice of Motion dated 21st July 2025 is devoid of merit and is hereby dismissed with costs to the Respondent. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 12TH DAY OF FEBRUARY, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Kavita for 1st Plaintifi/Applicant Mr. Dado for Defendant Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2015/eng@2026-02-12 3

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