Merie v Gakuya & 3 others (Environment and Land Case E129 of 2021) [2026] KEELC 5082 (KLR)

During her testimony, she sought to produce her bundle of documents dated 25th October, 2023 as part of her evidence. 3. The 1st defendant/applicant deposed that upon attempted production of documents numbered 1 to 9 in the plaintifi's bundle, were purported letters from Mae properties limited allegedly relating to the suit property, and his advocate on record raised an objection on the basis that the maker of the documents was not the one producing them. He deposed that the plaintifi/respondent, as a mere recipient, lacked the legal competence to tender them in evidence. Further objection was raised on the basis that the said documents were neither originals nor certified copies and therefore amounted to secondary evidence whose admissibility is strictly regulated by Sections 35, 67, and 68 of the Evidence Act. 4. The 1st defendant/applicant deposed that the plaintifi/respondent informed the court that she would not call the maker of the documents for the alleged reason that Mae properties limited had been “wound up”. However, no evidence whatsoever was produced to substantiate these claims. There was no certificate of winding up, no gazette notice, no proof of dissolution, and no documentation indicating that the alleged author could not be summoned to testify. 5. The 1st defendant/applicant raised issue that the court admitted the said documents solely on the basis that they were addressed to the plaintifi/respondent, and that the issue ought to have been raised during pre-trial conference. The court then proceeded to dismiss the objection in respect of documents number 1 to 9, which decision he wishes to appeal against. However, the 1st defendant/ applicant deposed that in the intervening period, his advocate in conduct of the matter fell ill and had to undergo an emergency surgery on 16th December, 2025 with a prescribed mandatory one-month bedrest. Consequently, the counsel could not file the application as soon as the order was made. 6. The 1st defendant/applicant argues that the delay was not inordinate but was outside the control of the counsel handling the matter and the delay has been properly explained. Further, that it is in the interest of justice that he is granted leave to file the appeal in accordance with the law, and that the intended appeal raises weighty and arguable matters of law, including misapplication of Sections 35, 66 and 68 of the Evidence Act, which is a violation of his right to a fair hearing under Article 50 of the Constitution. 7. The 1st defendant/applicant deposed that the respondents will sufier no prejudice if the orders sought are granted, as the appeal process merely allows the issues of law to be ventilated before the court of appeal without altering the substantive rights of the parties at this stage. On the other hand, if he is denied the opportunity to appeal, he will sufier grave and irreparable injustice, given that the impugned ruling permitted the admission of documents which constitute the central pillar of the plaintifi/respondent’s case without compliance with the rules of evidence under the Evidence Act and will prejudice his defence. 8. The plaintifi/respondent filed the replying afidavit in response to the instant application sworn on 27th February, 2026. She deposed that this court has mandate to decline the said prayer of stay of proceedings, upon taking into account the history of the 1st defendant/applicant’s attitude towards the progress of disposal of this suit which has been heavily burdened by his non-attendance for the last 5 years, noting that he has attended court physically only once on 18th November, 2025 in a period of 5 years, and has a high record of adjournments as the record indicates. 9. The plaintifi/respondent desposed that she has never received any query from the 1st defendant/ applicant concerning the documents she has filed in support of her case prior to commencement of the hearing, and that the 1st defendant/applicant never indicated prior to the day of hearing that he would wish to examine the makers of the documents produced in court for them to be summoned to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5082/eng@2026-08-04 2

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attend court. She further deposed that any further delay in disposal of this suit shall be very costly to her, since she has been faithfully attending court for hearings only for the court to be given excuses for non-attendance leading to very many unnecessary adjournments. 10. The application was canvassed through written submissions. The 1st defendant/applicant filed his written submissions dated 23rd March, 2026 while the plaintifi/respondent filed written submissions dated 6th March, 2026. I have considered the application, the replying afidavit and the written submissions filed. The issue for determination is whether the application has merit. 11. The 1st defendant/applicant seeks stay of proceedings, with the plaintifi/respondent’s case being partheard, for the reason that he wishes to appeal the decision of this court which overruled the legal counsel’s objection to the production letters from Mae properties limited allegedly relating to the suit property, on the basis that the maker of the documents was not the one producing them, and that the plaintifi/respondent as the recipient lacked the legal competence to tender them in evidence. 12. Stay of proceedings is provided for by Order 42 Rule 6(1) of the Civil Procedure Rules which provides that:“ No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for suficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.” 13. The 1st defendant/applicant relied on the case of In re Estate of Ali Alex Magokha (Deceased) [2026] KEHC 1111 (KLR), where it was stated as follows:“ In line with the foregoing guidelines, it is generally agreed that in an application for grant of stay of proceedings, the matters that the court must satisfy itself on are; 14. a. that the applicant has established a prima facie arguable case; b. that the application was filed expeditiously; and c. that the applicant has established suficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.” Stay of proceedings has a high threshold for granting of the same. In the case of William Odhiambo Ramogi & 2 Others v. Attorney General & 3 others [2019] eKLR, the court established the criteria for stay of proceedings enumerated as follows here below:“ a. First, there must be an appeal pending before the higher court; b. Second, where such stay is sought in the court hearing the case as opposed to the higher court to which the appeal has been filed, and there is no express provision of the law allowing for such an application, the applicant should explain why the stay has not been sought in the higher court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5082/eng@2026-08-04 3

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the court to which an appeal is preferred because such a court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly. c. Third, the applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; d. Fourth, the applicant must demonstrate that the appeal would be rendered nugatory if the stay of proceedings is not granted; e. Fifth, the applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f. Sixth, the applicant must demonstrate that the application for stay was led expeditiously and without delay.” 15. I note that the application herein fails on the first limb, that there must be an appeal pending before the higher court. There is no such demonstration by the 1st defendant/applicant that there is a pending appeal before the court of appeal on the issues that he has raised. The second limb recognizes the potential of an application for stay of proceedings to inordinately delay trial, thus, there is a policy in favour of applications for stay being handled in the court to which an appeal is preferred, which would be the court of appeal in this case and not this court. 16. Ringera, J (as he then was), in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No 43 of 2000) had this to say on this matter of stay of proceedings:“ I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilisation of judicial time and whether the application has been brought expeditiously.” 17. Due to the long-wound pendency of this suit at the hearing stage, and in facilitation of the inherent power of the court to promote the expeditious disposal of suits, the court thus exercises its discretion to decline to grant a stay of proceedings. 18. The second prayer by the 1st defendant/applicant is that he be granted leave to lodge an appeal against the ruling delivered by the court on 18th November, 2025. The supreme court in the case of Nicholas Kiptoo Arap Korir Salat v. IEBC and 7 Others, Sup Ct. Application 16 of 2014 [2014] KESC 12 (KLR) established the principles to be applied in exercising the discretionary power to extend time as follows:“ Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis [for] where they seek [grant of it.……. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5082/eng@2026-08-04 4

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The Court further decided that:“ This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a court should consider in the exercise of such discretion:- 19. 1. extension of time is not a right of a party; it is an equitable remedy that is only available to a deserving party at the discretion of the court; 2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the court; 3. whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; 4. where there is [good] reason for the delay, the delay should be explained to the satisfaction of the court; 5. whether there will be any prejudice sufiered by the respondents if the extension is granted; 6. whether the application has been brought without undue delay; and 7. whether in certain cases, like election petitions, the public interest should be a consideration for extending time.” Having evaluated all the issues raised in the application, the court finds that the 1st defendant/applicant has not shown any evidence of a notice of appeal and a draft appeal, if any, to enable the court grant him leave to appeal out of time. Also, considering the prejudice that the parties will sufier with the delayed hearing of the suit, this court finds no merit in the notice of motion dated 19th January, 2026 and the same is hereby dismissed with costs to the plaintifi/respondent. Further mention on 3rd November, 2026 to fix a date for hearing. It is soN ordered. DATED, SIGNED & DELIVERED VIRTUALLY ON THIS 4TH DAY OF AUGUST, 2026. HON. MBOGO C.G. JUDGE 04/08/2026. In the presence of: Ms. Benson Agunga - Court assistant Ms. Njeri Kiagayu for the Plaintifi/Respondent Ms. Murigu for the 1st Defendant/Applicant Mr. Odongo for the 2nd and 4th Defendant/Respondent – absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5082/eng@2026-08-04 5

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