Awke (Appealing as the administratix of the Estate of Sale Awke - Deceased) v Awke & another

4. At the time of writing this Ruling, the Respondents had neither entered appearance nor led a response despite evidence of service. 5. I have carefully considered the Application and nd that the sole issue for determination is whether the application for stay of proceedings in Ngong CMELC No. 18 of 2020 consolidated with Ngong CMELC No. E001 of 2023 is merited and should be granted. 6. The Appeal herein arises from the ruling of the Learned Magistrate dismissing the Appellant’s application seeking to be joined as an interested party in the proceedings. The Appellant claims that she sought joinder on behalf of the Estate of the late Saleh Awke, her father, who she alleges was the registered proprietor of Ngong Plot No. 20B. She states that following her father’s demise, her brother, the 1st Respondent herein fraudulently procured registration of the suit property in his own name. And that the suit property is at the centre of the dispute between the 1st and the 2nd Respondents. 7. On whether stay of proceedings is merited or not, the Court of Appeal in County Government of Nairobi v D Kenya Power and Lighting Company Plc & another [2026] KECA 1050 (KLR) held: “ … the principle that a grant of an order of stay of proceedings will only be made where exceptional circumstances exist. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, it is expressed that: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the 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 proceeding 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...” The reason for this is that such order is drastic, for it has the eect of restricting the right to be heard, and can also result in delay in the conclusion of a case. It will need a very special or clear case, for such an order to be made. 8. Further in Meta Platforms, Inc & another v Samasource Kenya EPZ Limited t/a Sama & 185 others; Central Organization of Trade Unions Kenya & 8 others (Interested Parties) [2023] KECA 999 (KLR) the Court held: In an application for stay of proceedings, a balance must be maintained between the right of a party to have the substantive suit heard timeously and the desire of his opponent to be given adequate time to prosecute his appeal. In granting an order of stay of proceedings, the court should be guided primarily by the necessity to be fair to both parties. In the exercise of its discretion to grant or refuse an application for stay of proceedings pending the determination of an appeal, the court is to be guided by the following principles which are not exhaustive, but are to be applied after a careful consideration of the peculiar facts and circumstances of the case at hand: a. There must be a pending appeal. A stay of proceedings can be granted only if there is a pending appeal, which is valid in law. b. There must be an arguable appeal. The appeal, which forms the basis of an application for stay of proceeding, must be competent and arguable on its merits. Where an appeal is frivolous, vexatious or an abuse of court process, an appellate court will decline jurisdiction to entertain the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5825/eng@2026-09-24 2

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c. Where the interlocutory appeal following an application for stay of proceedings will nally dispose of the case or put an end to the proceedings in the lower court, stay of proceedings would be granted. An example is where an appeal raises a pure issue of jurisdiction of the lower court. An appellate court will grant an application for stay of proceedings if on the face of the appeal the court is satised that there is a real issue of jurisdiction to be tried as the decision on appeal will dispose of the proceedings in the lower court. We have already addressed the nature of jurisdiction urged before us. We need not rehash it here. d. Where the res will be destroyed, damaged or annihilated before the matter is disposed of, an appellate court will grant stay. e. The Court of Appeal would be reluctant to grant an application for stay of proceedings if it would cause greater hardship than if the application were refused. f. A stay of proceedings will be granted where to do otherwise will tend to render any order of the appellate court nugatory. 9. Applying the foregoing principles to the present case and without delving into the merits of the case which will be discussed in the main appeal, the Court is satised that the appeal is not frivolous and raises arguable issues. The crux of the matter is the right of the Appellant to be heard in the matter before the magistrate’s court. If the suit at the Lower Court proceeds as is, there is a possibility that the substratum of the appeal will disappear and the Appeal will be rendered an academic exercise. Moreover, the Respondents have not demonstrated any prejudice that they are likely to suer if proceedings are temporarily halted pending the determination of this appeal. 10. Having weighed the competing interests, this Court is persuaded that the scales of justice favour preserving the status quo until the question of the Appellant’s entitlement to participate in the subordinate court proceedings is conclusively determined on appeal. 11. Accordingly, the Notice of Motion dated 11th June 2026 is hereby allowed and the following orders issued: i. There shall be a stay of proceedings in Ngong CMELC No. 18 of 2020 consolidated with Ngong CMELC No. E001 of 2023 pending the hearing and determination of this appeal. ii. Costs of the application shall abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24TH DAY OF SEPTEMBER 2026. JUDY OMANGE JUDGE. In the presence of: Mr. Mutemi for Appellant. Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5825/eng@2026-09-24 3

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