Juma Okumu v Agricultural Development Corporation & 8 others

The court reiterated that a rule 5(2)(b) applicant must show the appeal is arguable and that failure to stay would render the appeal nugatory. It found the grounds on the failure to review the affidavit-evidence directions bona fide and not frivolous, but held that continuation of the petition before the ELC would not destroy the subject matter or cause irreversible harm, since an adverse judgment can be reversed on appeal. Because both limbs must be met, the application failed.

Drawing on Halsbury's Laws of England and Kenyan authorities including Co-operative Bank of Kenya Limited v Mwangi and the Kenya Magistrates & Judges Association application, the court distilled principles: a stay is a drastic interference with the trial process, reserved for exceptional cases, requiring a reasoned order, and prolonging a trial risks lost evidence and delayed justice. No exceptional circumstances - rendering the appeal nugatory, grave injustice, or irreparable harm - were demonstrated.

The court held that the applicant's attempt to have it rule on the importance of viva voce evidence, relying on Fanikiwa Limited v Sirikwa Squatters Group, was a prohibited incursion into the province of the appeal bench. Its only task was whether the twin prerequisites were met. It therefore confined itself to arguability and nugatory-impact, expressly declining definitive findings of law or fact.