Regina Mugure & another v Stephen Mwenda M'Marete & 4 others

The court applied the first criterion under Order 42 Rule 6, comparing the date of the trial judgment (5th September 2022) with the filing date of the application (16th September 2022), an interval of eleven days, and found that the application was brought without unreasonable delay, satisfying that limb of the test.

The applicants deposed that failure to grant stay would expose them to eviction and expose the suit property to sale by the 1st and 3rd respondents. Applying Silverstein v Chesoni, the court held that if the applicants were evicted and the land sold, the appeal would be rendered nugatory and the applicants would suffer substantial loss, satisfying the second criterion.

Although the applicants had not addressed security, the court held it has power to order security. Considering the facts, it directed deposit of Kshs. 1,000,000 into an interest-earning account in the joint names of the advocates, within thirty days, with automatic lapse of the stay orders upon default, balancing the appellants' right of appeal against the successful litigant's right to the fruits of the judgment.

The court characterized stay of proceedings as a grave judicial action that impedes access to justice and fair trial rights, grantable sparingly and exceptionally. It was not satisfied that proper reasons existed, noting the order would further delay proceedings in the subordinate court, and therefore declined the prayer for stay of proceedings.