Ivivya & another v Kituku & another

court proceeds; and that it is in the interest of justice that this application be allowed as the appeal raises weighty issues on the right to be heard. 3. The application came with a supporting adavit which generally elaborated on the grounds advanced in support of the prayers sought. It was emphasized that the omission to le witness statements was an inadvertent mistake on the part of applicants’ counsel and that such mistake should not be visited on the applicants. The applicants expressed their fear that they might be forced to close their defence without calling evidence. 4. The application was responded to via a replying adavit dated 15/1/2025. The respondents pointed out that the applicants’ witness statements were led in court long after the close of pleadings and without leave of the court. It was said that the applicants’ eort in the lower court to have their statements admitted was an attempt to regularise non-compliance with procedural rules. The applicants’ counsel was said to have been representing the applicants for a long time and his claim that failure to le witness statements timeously was “...untenable, given the signicant lapse of time…” . Compliance with procedural requirements was said to be necessary to ensure “fairness and eciency in the admiration of justice” and therefore, allowing the applicants to introduce witness statements belatedly would “unfairly prejudice the plaintis, who have prepared their case based on the defendants’ initial pleadings and disclosures.” 5. Further, the trial court was said to have upheld the principles of nality and procedural fairness by declining to exercise its discretion to admit the witness statements out of time. The applicants were also faulted for not demonstrating how allowing the trial court proceed will render their appeal nugatory. This court was urged to dismiss the application. 6. The applicants led a further adavit dated 29/1/2025 and asked that the mistake of their counsel should not be visited on them. The application under consideration now was said to have been “made in good faith and timeously.” 7. The application was canvassed by way of written submissions. The applicants’ submissions are dated 14/3/2025. It was submitted that the rationale for the application is that if the order of stay is not sought, the appeal will be rendered nugatory as the respondents’ case is already closed. Then the case of William Odhiambo Ramogi & 2 others –vs- The Honourable Attorney General & 3 others [2019] eKLR was cited to demonstrate what the court requires to consider in deciding whether to grant an order of stay of proceedings. The requirements include, among others, demonstrating the existence of an appeal and, which is second, if the application is sought in the court in which the proceedings are being handled as opposed to the appellate forum where the appeal has been led, and there is no provisions of law allowing for such application to be led there, the appellant or applicant has to explain why the application has not been led in the appellate forum. The applicant is also required to show that the appeal raises substantial questions to be determined and/or that the appeal is arguable. 8. Further, it is required that it be shown that if the order of stay is not granted, the appeal might be rendered nugatory. Moreover, the applicants needs to justify why the case should not proceed given that any arising grievances can be urged in an appeal that can be led after the conclusion of the case. 9. Other cases cited and quoted include Llyod Masika Limited –vs- Stanbic Bank Limited (Civil Appeal (Application) No. E. 200 of 2023) [2024] KECA 72 (KLR) (9th February 2024) (Ruling), Stanley Kang’ethe Kinyanjui –vs- Tonny Keter & Others [2013] eKLR and Access Bank Kenya PLC – vs- Mengich & Another (Civil Appeal E003 of 2024) [2024] KEHC 5682 (KLR) (22 May 2024) (Ruling). Two of these cases – Kang’ethe Kinyanjui’s (supra) and Llyod Masika’s (supra) – were cited to demonstrate the meaning and scope of the word “nugatory” while the third one – Access Bank Kenya https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18635/eng@2025-12-16 2

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PLC (Supra) – emphasized that the granting of the order of stay is based on discretion and the exercise of that discretion has to be based on the interests of justice. 10. The applicants submitted that they have met the requirements for granting an order of stay. They also emphasized the importance of the right of hearing before ultimately asking that their application be allowed. 11. The respondents’ submissions are dated 11/3/2025. The submissions start with a synopsis of what is before the court. Thereafter the focus was on delineating the issues for determination. According to the respondents the issues are whether the applicants have met the threshold for a grant of an order of stay of proceedings; whether the appeal should be summarily dismissed; and nally who should bear the costs of the application. 12. On whether the applicants have met the requisite threshold, the respondents posited that an order of stay of proceedings “signicantly disrupts a party’s right to advance their case based on its substantive merits.” It was therefore pointed out that the power to grant the order “ought to be exercised sparingly, and only in exceptional cases.” As a necessary back-up to the argument, the cases of Kenya Wildlife Service –vs- James Mutembei [2019] eKLR, and Global Tours & Travels Limited –vs- Esther Wanjiru Wokabi [2014] eKLR were cited and quoted as deemed appropriate. The cases emphasized that the test to be met is “high and stringent” (see Kenya Wildlife’s case – supra) and that granting the order is only necessary “in the interest of justice” (See both Global Tour’s case – supra, and Kenya Power & Lighting Company’s case – supra). 13. It was submitted that the applicants have not demonstrated that they have an arguable appeal; that the lower court’s refusal to admit the witness statement was based on procedure; and that the existing constitutional and statutory provisions which give allowance for procedural exibility “cannot be used to excuse negligence.” The applicants were faulted for not giving compelling reasons to show that failure to comply with procedure was beyond their control. They were said to have been required also to show that what they are seeking is not prejudicial to the respondent and that failure to le witness statements on time was due to a genuine mistake “rather than a deliberate disregard of court rules.” 14. On summary dismissal of the appeal, the court was urged to do so because the appeal led has no triable issues. It was said to the bereft of “any arguable points of law or fact that would warrant interference with the trial court’s discretionary decision.” 15. On costs, Section 27 (1) of the Civil Procedure Act (Cap 21) was cited to drive home the point that costs follow the event. This position normally requires that an unsuccessful litigant bears the cost burden. The respondents asked that the application and the appeal be dismissed and that costs be awarded to them. 16. I have considered the application, the response made to it, the applicant’s further adavit which obviously came as a logical sequel to the respondent’s response, and the rival submissions. What is necessary to consider is whether the application has merits. An order of stay of proceedings is not easy to grant. It is granted only in exceptional circumstances in order to prevent a manifest or obvious injustice. Typically, it would be granted where a pending appeal would be rendered nugatory if the lower court proceeds or where it is well demonstrated that the lower court matter is frivolous, vexatious, or completely bereft of merits. Further, such an order can also be granted where the person seeking the order demonstrates the likelihood of suering substantial loss. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18635/eng@2025-12-16 3

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17. In Halsbury’s Laws of England, 4th Edition, Vol. 37 pages 330 and 332, the concept of stay of proceedings is captured as follows: “ The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue. “This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases. “It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or equity. The application for stay on this ground must show not merely that the plainti might not succeed but that he couldn’t possibly succeed on the basis of the pleading and the facts of the case.” 18. From the foregoing, it is plain that an order of stay of proceedings is not given by the courts as a matter of course. It is an order that involves the exercise of judicial discretion and a party desiring to get it must have an arguable appeal, demonstrate the likelihood of substantial loss or irreparable harm and/or show that the appeal, if successful, will be rendered nugatory. Such a party must le the application without delay and must disclose to the court all relevant material facts to help in its exercise of discretion. The court on its part weighs the needs for justice against the danger posed by the interruption of proceedings caused by granting the order. Every case however is ultimately considered in light of its own circumstances. 19. In the matter at hand, the reason given for failure to le witness statements within the given timelines is that it was due to an inadvertent mistake on the part of the applicant’s counsel. From this, it would appear that the applicants’ counsel innocently forgot to le the statements. It appears clear however, that the defence and the relevant documents to be relied on by the applicants had all been led. Only the witness statements were remaining or missing. Counsel for the respondents pooh poohs the explanation and points out that counsel for the applicant has been on record since the year 2020 and that it all happened due to indolence and/or lack of diligence. Here, I have to make a choice as to who or what to believe. But before I do that, I want to deal with the issue of the summary dismissal of the appeal as raised by the respondents. 20. Summary dismissal of a matter led in court is always a real uphill battle. It is never a walk in the park. In my considered view, the issue is inappropriately raised in the matter at hand. If the respondents wanted it to be an issue for the court to treat with some seriousness, it should have been raised in their replying adavit led in response to the application under consideration. That way, one would expect that the applicants would have had something to say about it in their further adavit. But the respondents chose to make it an issue only in the submissions. The submissions themselves were led at or around the same time the applicants led their submissions and it is easy to surmise that applicants did not get an opportunity to address it at all. 21. Further, even if the issue had been raised as suggested, that is still not a guarantee that the respondents stood a good chance of having the appeal dismissed. As pointed out earlier, summary dismissal is a grave matter. Raising it belatedly in response to an interlocutory application that is not focussed on it is both contextually diversionary and unhelpful. Given its grave nature, it requires a full-edged application in its own right. In such an application, an express prayer for such dismissal would be expected to be https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18635/eng@2025-12-16 4

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made. When done that way, the other side is aorded ample opportunity to make a full and in-depth response. The court then would pronounce itself on it in a reasoned ruling. 22. I now come back to something I said earlier namely: That I have to make a choice as to who or what to believe concerning the explanations given by the two opposing sides regarding failure to le witness statements on time. According to the respondents, it was all due to indolence and/or negligence. According to the applicants, it was due to an inadvertent mistake. Between these two I choose to believe the applicants. I do so for the purpose of this application only. Given that I have already rejected the idea of dismissing the appeal summarily, I expect that these same explanations will crop up while hearing the appeal. In fact, the explanations are more relevant for the purpose of the appeal itself than for an interlocutory application like this one which is focused on stay of proceedings. It is at that stage in my view where the court is supposed to explain fully why it has taken its position. 23. It is true that the test for determining whether to stay proceedings is strict and this is well captured in the Kenya Wildlife Service –vs- James Mutembei [2019] eKLR, Global Tours & Travels Limited: Nairobi HC winding up Cause No. 43 of 2000, and Kenya Power & Lighting Company Limited – vs Esther Wanjiru Wokabi [2014] eKLR, which are all cases cited and quoted by the respondents. But in the case of Christopher Ndolo Mutuku & Another -vs- CFC Stanbic Bank Ltd. [2015] eKLR, the court observed that what matters in an application for stay of proceedings pending appeal is the overall impression that the court makes of the matter and if the aggregate sum of the circumstances tilts things in favour of granting the order, then such an order can be issued in the interests of justice. 24. In Stephen Maina Githiga & 5 Others –vs- Kiru Tea Factory Company Ltd: Application No. 12 of 2019 the Supreme Court granted an order of stay of proceedings after considering the test to be applied in applications of that kind and also after appreciating the totality of the prevailing circumstances in the matter that was before it. 25. Further, in Makena –vs- Nalwa (Civil Appeal E 127 of 2024) [2024] KEHC 13086 (KLR) (23rd October 2024) (Ruling), the applicant alleged that hearing of the suit in the lower court when the appeal was pending would be in violation of the applicants’ right to a fair hearing and that the applicant would be prejudiced by failure to grant a stay of proceedings pending the hearing and determination of the appeal. Another argument was that the appeal would be rendered nugatory. The court considered all this and also the circumstances relating to the case before it. It granted an order of stay. 26. In the matter before me, the contest is about denial of admission of witness statement in the matter pending in the lower court. It appears to me that in the appeal itself, I will be called up to consider the sacrosanct right of fair hearing and possibly the circumstances in which such right can be circumscribed or even denied. Given the pride of place occupied by that right in our legal system, my considered view is that a stay is necessary in order that status quo is maintained as the parties prepare to fully ventilate their respective positions concerning the appeal. I take the position that it is in the interest of justice to do so. 27. The upshot is that I allow the application herein. Costs to be in the cause. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 16TH DAY OF DECEMBER, 2025. In the presence of; Court Assistant – Musyoki Appellant – absent Respondent - absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18635/eng@2025-12-16 5

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Kilonzi for Mwalimu for Applicants/Appellants Everlyn Kyania for B. Musau for Respondents A. KANIARU JUDGE- ENVIRONMENT & LAND COURT, KITUI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18635/eng@2025-12-16 6

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