Wanjau & another v Tipapi & 2 others

5. Counsels argued the application orally with each counsel canvassing their respective positions. 6. The sole issue for determination is whether the court should stay the proceedings in the Magistrates Court. 7. On the issue of stay of proceedings, Halsbury Laws Of England 4th Edition Vol 37 at page 330 has this to say; “ The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plainti might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case.” 8. Ringera J. In Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000): posited “As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 9. In the case of William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR, a 5-judge Bench of the High Court, laid out the principles that should guide a court in grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court. See: Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] eKLR; Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000); David Morton Silverstein v Atsango Chesoni [2002] eKLR: They laid down the following six principles set out hereunder: a. There must be an appeal pending before the higher Court; b. where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been led and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly; c. the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5849/eng@2026-09-24 2

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d. the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted; e. the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f. the Applicant must demonstrate that the application for stay was led expeditiously and without delay. 10. Of relevance to the instant application is whether the appeal is arguable; whether it would be rendered nugatory and whether there are exceptional circumstances warranting stay of proceedings. 11. The question of whether a counterclaim led before obtaining a grant of letters of administration is arguable and an issue which the court will be deciding in the main appeal. 12. However, establishment of an arguable appeal is not, without more, sucient to warrant stay of proceedings. The applicant must further demonstrate that continuation of the proceedings would render the appeal nugatory and that exceptional circumstances justify interruption of the trial. 13. The mere possibility that proceedings may have been undertaken in the meantime does not, without demonstration of an irreversible prejudice, establish that the appeal would be rendered nugatory. Moreso considering the circumstances of this case where a stay of proceedings would amount to staying the Plaintis own matter which he led in court. 14. I therefore nd that the application has no merit and is dismissed with costs to abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24TH DAY OF SEPTEMBER 2026. JUDY OMANGE JUDGE. In the Presence of: Mr. Kingori for Mr. Okoba for Respondent. Mr. Motende for the Appellants. Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5849/eng@2026-09-24 3

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