Khan v International Commercial Company (K) Ltd
The bottom line
#Supreme Court refuses to stop proceedings because application was too late and appeal was set for hearing.
What this practically means
#A party asked the Supreme Court to pause proceedings from a Court of Appeal decision while his appeal was pending. The Court said no, because the request came only a month before the appeal was to be heard. Granting such a delay would waste time and hurt the right to a speedy trial. The application was dismissed without costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has established grounds for the grant of a stay of proceedings pending the hearing and determination of the appeal.
Key legal issues
#Whether a stay of proceedings should be granted when the appeal is set for hearing shortly after the application for stay is filed.
The court declined to grant the stay, holding that the application was filed too close to the hearing date and that granting interlocutory orders would not benefit the parties since the substance of the appeal was already before the court.
The court noted that the application for stay was filed on September 4, 2023, and the appeal was set for hearing on October 5, 2023. The orders sought to be stayed were issued on February 17, 2023, and the court questioned why the stay was being sought only a week before the hearing. The court exercised its discretion against granting the stay, reasoning that the substance of the appeal was already before it for determination, making interlocutory orders of no practical benefit.
Whether the court should order the withdrawal or suspension of publication of the Court of Appeal judgments on the Kenyalaw website.
The court declined to grant this relief, finding no proper basis to interfere with the publication of court decisions where the issue was not germane to the appeal.
The court considered that the prayers for withdrawal or marking of the judgments as suspended were consequential or alternative to the main prayer for stay, which was dismissed. Additionally, the court found that the issue of publication of court decisions was not relevant to the appeal before it.
Legal principles established
#- Stay of proceedings is discretionary and only granted in deserving cases due to its impact on the right to expeditious trial.
- A court may decline interlocutory relief if it would imperil the court's ultimate function of delivering justice under the Constitution.
- An application for stay filed too close to the hearing date will be denied as it offers no practical benefit.
- The court will not order withdrawal or suspension of published judgments if that issue is not relevant to the appeal before it.
- Courts will not issue interlocutory orders that are of no benefit to the parties when the substance of the appeal is already before the court.
Court orders
#- 1.The notice of motion dated August 30, 2023 and filed on September 4, 2023 be and is hereby dismissed.
- 2.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeals No. 63 and 124 of 2018
- Jurisdiction invoked
- Section 3A, 21(2), 23A(1)(a) and 24 of the Supreme Court Act; Rules 31(1) & (6), 32(1) & (2) of the Supreme Court Rules
Relief refused
#Stay of further proceedings on the judgments and orders of the Court of Appeal dated February 17, 2023 in Civil Appeals No. 63 and 124 of 2018 pending the hearing and determination of the application and the appeal.
The application was filed too close to the hearing date of the appeal, and the substance of the appeal was already before the court for determination.
Withdrawal of posting of the Court of Appeal judgments from the Kenyalaw website, or marking them as suspended.
The court found no proper basis to enter into the realm of publication of court decisions in a matter where the issue is not germane to the appeal.
Admittance of the petitioner's submissions in reply dated August 31, 2023.
This prayer was consequential to the main prayer for stay, which was dismissed.
Costs
There shall be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We remain alive to the fact that the grant of an order for stay of proceedings is to be entertained only in deserving cases as it impacts the right to expeditious trial.
From a purely practical level, our discretion is tilted towards not issuing interlocutory orders in the nature of stay of proceedings whose effect may not ultimately be of benefit to the parties since the substance of the appeal is now before us for determination.
Key timeline
#Practical implications
#Time your stay applications carefully
File stay applications well before the hearing date. This case shows that waiting until a month before the hearing risks summary dismissal. The court emphasized that interlocutory orders are not beneficial once the substance is already before it. Advise clients to seek stays promptly after an adverse ruling, not on the eve of the appeal.
Avoid delay tactics in litigation
If you are a party to a case and want to delay proceedings, this ruling warns that courts will not tolerate last-minute stay applications. The Supreme Court protects the right to an expeditious trial. Ensure your legal team acts early if you need interim relief. Waiting too long can damage your credibility and waste legal costs.
Your right to a speedy trial matters
You have a constitutional right to have your case heard without unnecessary delay. This ruling reinforces that courts guard that right. If the other side seeks a stay of proceedings at the last minute, the court is likely to reject it. This protects you from being dragged into pointless postponements.
Frequently asked questions
#Can I get a stay of proceedings in Kenya while appealing to the Supreme Court?+
Yes, but it is discretionary and granted only in deserving cases. You must show that the stay is necessary and that you applied promptly. Filing too close to the hearing date, as in Kayum Khan, will lead to dismissal because it harms the right to a speedy trial.
Why was the stay denied in Kayum Khan v. the respondent?+
The Supreme Court denied the stay because the application was filed only a month before the appeal was set for hearing. The court found that granting interlocutory orders would not benefit anyone since the main appeal was already ready for decision. The delay also undermined the right to expeditious justice.
What happens if I file a stay application too close to the hearing date in Kenya?+
The court will likely dismiss it. In Kayum Khan, the court said such applications are of no practical benefit once the substance of the appeal is before it. The court also considers that fast-filed applications interfere with the right to an expeditious trial and waste judicial resources.
Can the Supreme Court order removal of judgments from the Kenyalaw website?+
Generally no, unless that issue is directly relevant to the appeal. In Kayum Khan, the court refused to order withdrawal or suspension of publication of Court of Appeal judgments on Kenyalaw because the application was based on a stay that was denied, and the publication issue was not germane to the appeal.
Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Munyiva & another v Muema (Suing as next friend to Angeline Mbithe Mbithi) (Land Case Appeal E026 of 2026) [2026] KEELC 4015 (KLR)[2026] KEELC 4015 (KLR)2 Jul 2026
- National Assembly v Gachagua & 66 others[2026] KESC 19 (KLR)30 Jan 2026
- Maina v Gachagua & 66 others (Civil Application E534 of 2025) [2025] KECA 1946 (KLR)[2025] KECA 1946 (KLR)21 Nov 2025applied
- HHI Management Services Limited v Okeyo & another (Civil Application E341 of 2024) [2025] KECA 501 (KLR)[2025] KECA 501 (KLR)21 Mar 2025
- Kyallo v Mutuku & 4 others (Environment & Land Miscellaneous Case E046 of 2024) [2025] KEELC 975 (KLR)[2025] KEELC 975 (KLR)4 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Khan v International Commercial Company (K) Ltd", Case Analysis (2023). Petition (Application) E009 & E010 of 2023 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/84/eng@2023-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.