Mawando Limited & another v Thousand Palms Beach Hotel Limited & another; SBM Bank (K) Ltd (Interested Party) (Civil Suit 45 of 2012) [2024] KEELC 7288 (KLR)

The court applied the conjunctive tests in Order 42 Rule 6(2). Substantial loss was proved by the valuation report showing the applicant had invested over Kshs. 300 million on the property, which would be lost if eviction proceeded pending appeal. The application filed 42 days after the ruling was held to be filed without undue delay. On security, though none was offered, the court invoked its discretion to impose a security condition rather than refuse the stay outright.

Applying Order 1 Rule 10(2) and the Supreme Court's criteria in Muruatetu, the court found the applicants' personal interest in the suit property identifiable and proximate, that they would suffer prejudice if not joined given their claims over the property's ownership and pending Nairobi litigation, and that their presence would enable the court to effectively and completely settle the ownership questions involved in the suit.

The court distinguished stay of execution from stay of proceedings, applying Gikonyo J's dictum in Kenya Wildlife Service v Mutembei that stay of proceedings seriously interferes with the right to conduct litigation and the right of access to justice. The Nairobi suit had been dismissed for want of prosecution in 2021, no evidence showed it still existed, the applicants had slept on their rights for over a decade, and the property lay within this court's jurisdiction.

While acknowledging Section 27(1) of the Civil Procedure Act and the principle that costs follow the event and that the successful party is typically entitled to costs, the court in its discretion found that in the circumstances there shall be no orders as to costs on both applications.