Sheikh & 18 others v Elegant Holdings Limited & 6 others (Environment and Land Case E018 of 2023) [2026] KEELC 2558 (KLR)

The Court applied the settled principles that stay of proceedings is a draconian, discretionary remedy granted sparingly. The Applicants had filed a Notice of Appeal but demonstrated no substantial loss; the joinder of the 7th Defendant had already been executed and his participation occasioned no irreparable harm. Conversely, the Plaintiffs demonstrated ongoing prejudice including property dilapidation, contempt of court orders, and NCA findings that Blocks 1–4 were uninhabitable. Delay would worsen the harm and render the suit nugatory.

Applying Giella v Cassman Brown and Nguruman, the Court found irreparable harm must be actual, imminent and not speculative. The NCA's declaration that the property was uninhabitable, its Suspension of Work Order, ongoing contempt of the 19th October 2023 injunction, and worsening dilapidation showed delay would expose the Plaintiffs to health risks, property loss and potential collapse of structures. The Applicants' joinder grievance could be ventilated both at trial and on appeal.

The Court noted the Applicants annexed no Memorandum or draft Grounds of Appeal, no stay orders from the Court of Appeal under Rule 5(2)(b) of the Appellate Jurisdiction Rules had been obtained, no substantial loss was shown since the joinder had been fully executed, and no security for costs was proposed as required by Order 42 Rule 6(2). These cumulative conditions balance the right of appeal against the constitutional imperative of expeditious disposal under Article 159(2)(b).

The Court weighed the appellate process against the need to prevent ongoing harm. The joinder grievance was ventilable at trial and on appeal without irreparable harm to the Applicants, whereas the Plaintiffs faced risks of structural collapse, health hazards and loss of investment, evidenced by the NCA report, photographs and affidavits. Delay would potentially render the suit nugatory, and judicial resources must be safeguarded against abuse of process.

The Court reaffirmed that costs are discretionary and follow the event unless there are compelling reasons to depart. The Respondents were compelled to file replying affidavits, grounds of opposition and submissions to resist an unmerited application, and were therefore entitled to indemnification. No exceptional circumstances justified departure from the general rule.