Kisoso v Kimamet and Totona (Suing as the Legal Representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment and Land Case 267 of 2017) [2025] KEELC 5547 (KLR)
The bottom line
#The High Court in Nakuru refused to pause a 2006 land case, ruling that filing an actual appeal is essential before asking to stay proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for stay of proceedings pending appeal
The application failed because the Applicant did not demonstrate that an appeal had actually been filed, did not explain why stay was not sought in the Court of Appeal, and did not show that the appeal would be rendered nugatory if the de novo trial proceeded.
The court adopted the six principles in William Odhiambo Ramogi requiring a pending appeal, explanation for not seeking stay in the higher court, arguability, nugatory prejudice, exceptional circumstances and expedition. The Applicant only obtained leave to appeal out of time on 27th September 2024 and gave no evidence of the appeal having been filed. Given the case had been pending since 2006, expeditious disposal weighed against a stay, and no prejudice would arise either way.
Whether a stay of proceedings could be granted by the trial court rather than the Court of Appeal
While the trial court retains jurisdiction to consider stay of proceedings, the policy favours such applications being made in the court to which the appeal is preferred, which can calibrate orders and timelines.
Relying on Ramogi, the court noted that where no express statutory provision allows stay applications in the trial court, the applicant should explain why stay was not sought in the higher court, because of the potential of stay applications to inordinately delay trial. The court observed it would still have had jurisdiction to consider such an application had it been filed in the Court of Appeal, and doubted why the Applicant had not done so.
Legal principles established
#- The power to grant a stay of proceedings should be exercised sparingly and only in exceptional circumstances, as such orders can infringe a litigant's right to conclude a trial on merit without undue delay
- A party granted leave to appeal an interlocutory ruling should ordinarily seek stay of proceedings in the appellate court, and a judgment on the merits is capable of being stayed, so the trial court's proceeding does not render an appeal nugatory
Court orders
#- 1.The Plaintiff/Applicant's Notice of Motion dated 29th October 2024 seeking stay of proceedings is dismissed
- 2.Costs of the application to the Defendant/Respondents
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to stay its own proceedings pending appeal; Order 42(6) of the Civil Procedure Rules relied on by the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoso v Kimamet and Totona (Suing as the Legal Representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment and Land Case 267 of 2017) [2025] KEELC 5547 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5547/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.