Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment

Joseph v Soy & another (Civil Application E499 of 2024) [2025] KECA 1115 (KLR)

Court of Appeal
20 June 2025
1,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to pause a Kshs 23.7 million default judgment, confirming stays of proceedings are granted only in rare, exceptionally strong cases.

What this practically means

#

Executive summary

#
This was a single-judge-panel application (a coram of three Judges of Appeal of the Court of Appeal at Nairobi) under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of proceedings pending appeal. The underlying dispute arose in the High Court at Kajiado, where default judgment was entered against the applicant on 25th July 2022 for a liquidated sum of Kshs 23,740,199.00 with interest, after the court found she had been duly served with summons but failed to enter appearance or file a defence. Her application to set aside that judgment, filed some six months later and blaming her former advocates, was dismissed with costs on 18th September 2024. She lodged a notice of appeal and then sought a stay of proceedings. The Court of Appeal applied the settled two-limb test of arguability and nugatory-ness. It held the intended appeal was not arguable: the attack was on the exercise of discretion, which the appellate court interferes with only in exceptional cases; the judgment was regular since service was admitted; no affidavit from the former advocate explained the alleged mistake; and a party admitting service cannot claim a breach of natural justice. The nugatory limb also failed, as the applicant never averred on oath that the respondents could not refund the decretal amount. Emphasising that stay of proceedings is a grave interruption of litigation granted only in exceptional, clear and compelling cases, the Court dismissed the application with costs to the respondents on 20th June 2025. The High Court's ruling thus stands undisturbed.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if the appeal were to succeed, it would be rendered nugatory absent an order of stay of proceedings

Key legal issues

#
01

Whether the intended appeal was arguable

Holding

The intended appeal, which merely attacked the exercise of discretion in refusing to set aside a regular default judgment, was not shown to be arguable; no affidavit from the previous advocate explained the alleged mistake, and the natural justice complaint was untenable given admitted service

Reasoning

The applicant was appealing against the exercise of discretion, which the appellate court will disturb only in exceptional cases. The judgment was a regular one since service was admitted. No affidavit from the former advocates explained the mistake said to have prevented entry of appearance, and a party admitting service cannot claim a natural justice breach. Where discretion is sought to challenge discretion, a high degree of assurance of error is needed.

p. 3
02

Whether the appeal would be rendered nugatory if stay were refused

Holding

The nugatory limb failed because there was nothing on record showing the respondents were impecunious or incapable of refunding the decretal amount; the applicant made only a fleeting submission and did not aver it on oath

Reasoning

The applicant's supporting affidavit did not aver that the respondents were incapable of refunding the decretal amount; the point was raised only fleetingly in written submissions. The respondents expressly contended they had the means to repay if the need arose. Without a serious suggestion of incapacity to refund, execution of the judgment would not render the appeal nugatory.

p. 3
03

The exceptional nature of stay of proceedings as a remedy

Holding

Stay of proceedings is a grave interruption of a party's right to litigate to trial and should not be imposed unless the proceedings beyond reasonable doubt ought not to continue

Reasoning

Relying on Katangi Developers Ltd v Prafula Enterprises Ltd, which approved Halsbury's Laws of England (4th edn, vol 37, para 330), the court reinforced that stay of proceedings is a serious, grave and fundamental interruption in the right to conduct litigation towards trial on the substantive merits, and is therefore granted only in exceptional, clear and compelling cases.

p. 4

Legal principles established

#
  • The Court of Appeal will not readily interfere with the exercise of discretion by the trial court except in exceptional cases
  • A stay of proceedings under rule 5(2)(b) will be granted only in an exceptional, clear and compelling case
  • Where a party is asked to have discretion exercised in its favour in order to challenge the exercise of discretion by the trial court, a high degree of assurance of error is required
  • A party who admits service of summons but fails to enter appearance cannot allege violation of natural justice

Court orders

#
  1. 1.Application for stay of proceedings dismissed with costs to the respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kajiado
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

#

Order of stay of proceedings pending appeal

The applicant failed to satisfy both limbs of rule 5(2)(b): the appeal was not shown to be arguable and the nugatory-ness limb was not demonstrated, stay being granted only in exceptional, clear and compelling cases

p. 4

Costs

Application dismissed with costs to the respondents

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.

The efiect is that this application is hereby dismissed with costs to the respondents. It is so ordered.
p. 4Final orders - dismissal of the application with costs
we are not satisfied that the applicant has met both conditions for grant of an order of stay of proceedings under rule 5(2) (b) of the Court of Appeal Rules
p. 4Failure to satisfy both rule 5(2)(b) conditions
this Court will not readily interfere with exercise of discretion by the trial court except in exceptional cases
p. 3Reluctance to interfere with trial court discretion
this Court will not grant an order of stay of proceedings except in an exceptional clear and compelling case
p. 4Stay of proceedings granted only in exceptional cases
it does not lie in the mouth of a party who admits having been served with summons but failed to enter appearance and filed defence, to allege that the rules of natural justice were violated
p. 3Natural justice unavailable where service is admitted

Issues in the judgment

#
minor

Recurring typographical errors in the judgment text, e.g. 'sermons' for 'summons' and 'efiect' for 'effect'

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph v Soy & another (Civil Application E499 of 2024) [2025] KECA 1115 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1115/eng@2025-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.