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pending the hearing and determination of Court of Appeal at Kisumu Case No. COACA/E071/2026. 2. The Defendant’s application stems from this Court’s Ruling delivered on 19th February 2026 where she had challenged the Plaintiff’s locus standi to sue on behalf of the estate of the late Stephen Ondiek. The Court held that on the face of it, it appears that the Plaintiff possesses the requisite legal capacity to institute the present suit, subject to the contrary being established at the hearing. 3. In the grounds advanced by the Defendant in support of her application, she has taken issue with the Court’s finding aforesaid. She states that the Court’s determination did not conclusively resolve the jurisdictional issue of locus standi. That there are competing grants and the Defendant asserts that the Court ought to have determined which of the grants is legitimate. The Defendant therefore appealed the Ruling to the Court of Appeal in Civil Appeal Application No. E071 of 2026- Concellia Aoko Omuga v John Paul Ondiek. 4. It is on the basis of the pending appeal that she seeks an order staying the present proceedings pending the determination thereof. She states that unless the stay orders sought are granted, the Plaintiff may enforce the impugned decision thereby interfering with her possession of the suit land. In such an event, the outcome of the appeal may be rendered nugatory, that is if she is successful. Page 2 of 10

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SUBMISSIONS 5. In her submissions, Counsel relied on the case of William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR, in which the elements that an applicant for stay of proceedings pending appeal must satisfy were comprehensively enunciated. 6. Informed by the holding of the Court in William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others (Supra), Mr. Okech submits that there is an active appeal pending before the Court of Appeal. He also argues that the intended appeal raises substantial and bona fide triable issues and there is a real possibility that the appeal may be rendered nugatory if these proceedings are not stayed. Finally, he states the application was filed promptly, which demonstrates good faith and a desire to preserve the substratum of the appeal. 7. Through written submissions are dated 06th June 2026, the Respondent submits on the legal threshold for grant of stay of proceedings pending appeal, citing the holding of the Court in Kenya Wildlife Service v James Mutembei [2019] eKLR, that proceedings should only be stayed in the most deserving cases because an order for stay is a drastic remedy that impedes a litigant’s right to conduct his litigation to finality. Page 3 of 10

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8. Mr. Mainga learned counsel for the Respondents submits that the application does not meet this high and stringent test for the grant of an order of stay. One, the Defendant is also pursuing a stay before the Court of Appeal, thus is forum shopping and an abuse of the court process. Second, relying on the holding of Ringera J. (as he then was) in Global Tours & Travels Limited: Nairobi HCCC Winding up Cause No. 43 of 2000, Counsel submitted that stay of proceedings is a matter of judicial discretion. In the exercise of this discretion, the Court is to take into account the necessity for expeditious determination of disputes, the arguability of the intended appeal, the prudent utilization of scarce judicial resources, and whether the application for stay was brought without undue delay. 9. Reliance is further placed on the holding of the Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [2015] eKLR, that: ““Justice shall not be delayed” is no longer a mere legal maxim in Kenya but a constitutional principle that emphasizes the duty of the advocates, litigants and other court users to assist the court to ensure the timely and efficient disposal of cases. The principles which are reiterated by sections 1A and 1B of the Civil Procedure Act are intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes.” Page 4 of 10

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10. He submits that the Defendant’s application is a calculated attempt to obstruct, delay, and defeat the timely determination of the present suit. He therefore argues that the Applicant has failed to meet the high and stringent threshold required for the grant of an order of stay of proceedings pending appeal. He urges that the application be dismissed with costs to the Respondent. Analysis and Determination: 11. The Applicant identified six principles outlined by a five-judge bench of the High Court in William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR to be considered in an application such as this. They are as follows: “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 the Court to which an appeal is Page 5 of 10

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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 filed expeditiously and without delay.” 12. An additional consideration per the Court in Muchiri v Tharamba & 3 Others [2025] KEELC 6822 (KLR) is as follows: “Butt – Versus - Rent Restriction Tribunal [1979] eKLR”. It was put thus by the Court of Appeal: - “It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Page 6 of 10

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Brett LJ in Wilson Vs Church (No 2) 12 Ch. D ([1879] 454 at P 459. In the same case, Cotton LJ said at P 458: “I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”” 13. Litigation follows a clear and predictable path from commencement to conclusion and appeal. An order staying proceedings interferes with this clear and predictable process for conducting litigation. Viewed solely from the perspective of Article 159(2)(b) that “justice shall not be delayed”, a stay of proceedings may appear undesirable. However, the exercise of judicial authority is geared towards the fair and just determination of disputes, and, as such, despite the Court's aversion to halting proceedings on account of a pending appeal, in appropriate cases a stay may be warranted to avoid rendering the outcome of the appeal nugatory. 14. There is no doubt that there is an appeal before the Court of Appeal and an application for stay before the Court of Appeal, withdrawn. The Applicant needs to demonstrate that her appeal raises substantial questions for determination or is otherwise arguable. On what constitutes an arguable appeal, the Court of Appeal in University of Nairobi v Ricatti Business of East Africa [2020] KECA 463 (KLR), had this to say: Page 7 of 10

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“We remind ourselves that on whether the appeal is arguable, the applicant need not establish a multiplicity of grounds and it is sufficient if a single bona fide arguable ground of appeal is raised. See Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004. 8. An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous. See Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.” 15. The Applicant’s appeal concerns the validity of the Plaintiff’s authority to sue on behalf of the estate of Stephen Ondiek due to a multiplicity of grants. The Court is satisfied that the appeal is arguable or at least raises substantial questions for determination. 16. The Applicant should also demonstrate that the appeal will be rendered nugatory if the stay of proceedings is not granted. In considering whether an appeal will be rendered nugatory, the Court of Appeal in Kinyanjui v Ketter & 5 Others [2013] KECA 378 (KLR) stated as follows: “x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” Page 8 of 10

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17. The Applicant, in her supporting affidavit stated that the appeal may be rendered nugatory because the Respondent can enforce the impugned decision and interfere with her possession of the property. Learned Counsel Mr. Okech stated in general terms that there exists a real and imminent danger that the pending appeal shall be rendered nugatory and that the present proceedings will prejudice the Applicant’s right to appeal. 18. The explanations provided by the Applicant are general and unclear as the Applicant does not demonstrate how the outcome of the appeal will be rendered useless or trivial. The Court will nonetheless consider the ramifications of allowing the matter to continue pending the outcome of the appeal. 19. Should the Court of Appeal ultimately determine that the Plaintiff lacks the requisite legal capacity to institute and maintain the suit, any proceedings conducted, and any judgment rendered, would be rendered null and void. Such an outcome does not render the appeal nugatory. In fact, the proceedings before this Court may be rendered nugatory if she succeeds before the Court of Appeal. Any judgment of this Court can be stayed and/or set aside depending on the outcome of the appeal. 20. The Court in Registered Trustees of Child Welfare Society of Kenya v Diocese of Embu Trustees, Registered & Another [2026] KEELC 1482 (KLR) held similarly at paragraph 12 that: Page 9 of 10

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“On nugatory effect: dismissal of a preliminary objection is a negative order, incapable of execution or stay, as it merely allows proceedings to continue. Per Kaushik Panchamatia v Prime Bank Limited [2020] eKLR, no positive order follows from such a ruling to warrant stay. Continuing the suit does not render the appeal nugatory; if successful, the appellate court can set aside any subsequent judgment.” 21. Accordingly, it is my finding that there is no positive order capable of execution by the Plaintiff that may render the Defendant’s appeal nugatory. 22. The Applicant is also mandated to demonstrate that there are exceptional circumstances which make the stay of proceedings warranted. No exceptional circumstances are stated to satisfy this requirement, and the Court could discern none from the material placed before it. 23. I conclude by holding that this application does not satisfy all the elements for the grant of a stay of proceedings. It is without merit and is dismissed with costs. Dated, signed and delivered at Kisii this 17th day of September, 2026. A. OMOLLO JUDGE Page 10 of 10

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