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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 5547 (KLR)

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)

High Court of Kenya
25 July 2025
2,234 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the High Court at Nakuru (M. A. Odeny J) on the Plaintiff/Applicant's Notice of Motion dated 29th October 2024 seeking a stay of proceedings pending the hearing and determination of an intended appeal. The suit, filed in 2006, was determined by a judgment dated 19th January 2023, but on 21st February 2023 Justice Mwangi Njoroge ordered that the matter be heard de novo with all parties to the counterclaim on board. The Applicant, having been granted leave by the Court of Appeal (Warsame JA) on 27th September 2024 to file an appeal out of time, argued that allowing the de novo trial to proceed risked two judgments in the same case. The Respondents countered that the application curtailed their right to be heard, that the Applicant should have moved the Court of Appeal, and that no threshold for stay had been met. The court adopted the six-pronged test in William Odhiambo Ramogi and Halsbury's principles that stay of proceedings is a grave interruption of a litigant's right to trial, to be exercised sparingly and only in exceptional circumstances. Noting there was no evidence that the appeal had actually been filed, that the Applicant had not explained why stay was not sought in the Court of Appeal, that the intended appeal could not be rendered nugatory since any judgment on the merits is itself capable of being stayed, and the need for expeditious disposal of a case pending since 2006, the court declined to exercise its discretion. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Applicant met the threshold for stay of proceedings pending appeal

Holding

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.

Reasoning

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.

p. 5
02

Whether a stay of proceedings could be granted by the trial court rather than the Court of Appeal

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Plaintiff/Applicant's Notice of Motion dated 29th October 2024 seeking stay of proceedings is dismissed
  2. 2.Costs of the application to the Defendant/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule (6)

Cases cited (21)

  • Kenya Power & Lighting Co Ltd v Esther Wanjiru Wokebii
    Civil Appeal No 326 of 2013 (2014) eKLR
  • Port Florence Community Health Care v Crown Health Care Limited
    [2022] eKLR
  • Timothy Kisina Kithokoi v Elijah Kitele & Another
    [2022] eKLR
  • Macharia v Macharia & Another
    (Civil Appeal E021 of 2023) [2023] KEHC 27492 (KLR)
  • Benson Khwatenge Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption & 2 others (Interested Parties)
    [2020] eKLR
  • Millicent Wamaitha Njogu v Pauline Nyambura Waweru
    [2022] eKLR
  • Kuko & Another v Ali & Another; Robinson (Interested Party)
    (Civil Application E023 of 2023) [2024] KECA 305 (KLR)
  • Mafoys United Africa Co Ltd
    (1961) 3 All ER 1169
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Owners of the Motor Vessel "Lilian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Samuel Kamau Macharia v KCB & 2 Others
    Civil Application No 2 of 2011
  • Chalisha FCS Ltd v Odhiambo & 9 Others
    (1987) KLR
  • Peter Njuguna Gitau v Daniel Kiprono Kiptum & 3 Others
    [2022] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex Parte Law Society of Kenya
    [2020] eKLR
  • Board of Governors Moi High School Kabarak v Malcom Bell & Another
    (2013) KLR-SCK
  • Mwai Kibaki v Daniel Toroitich Arap Moi
    (1999) eKLR
  • William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others
    [2019] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • David Morton Silverstein v Atsango Chesoni
    [2002] eKLR
  • Turbo Highway Eldoret Ltd v Muniu
    (Civil Appeal E040 of 2021) [2022] KEHC 10197 (KLR)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.