Wenzma Company Limited v Boniface Ayubu, The Land Registrar, Kajiado North & James Muriithi Muchiri (with Elida Kerubo Nyambagera as Intended 4th Respondent)

3. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 26th January 2026. The Appellant contends that the intended party is a necessary party to the proceedings, being alleged to be the first transferee in the impugned chain of transactions relating to Title No. KJD/OLEKASASI/1399. It is the Appellant's case that unless the proceedings before the subordinate court are stayed, the appeal may be rendered nugatory and the parties may be exposed to the risk of inconsistent findings and duplication of proceedings. 4. The application is supported by the affidavit of Victor Otieno Opiyo, a director of the Appellant, sworn on 27th April 2026. 5. The application is opposed by the 1st Respondent, Boniface Ayubu Lawrence, through a Replying Affidavit sworn on 25th May 2026. The 1st Respondent contends, in substance, that the appeal does not raise any arguable issue warranting a stay of proceedings; that the trial court adequately addressed the participation of the intended party by directing that she be called as a witness; and that no prejudice or substantial loss has been demonstrated. The Respondent further urges the Court to allow the subordinate court proceedings to proceed to conclusion without further delay. RULIN G ELCA E008/2026 2

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6. Upon considering the application and the respective responses, the Court directed that the application be canvassed by way of written submissions which have been duly considered in the writing of this ruling. Issues for determination 7. The sole issue for determination is whether, in the circumstances of this case, the Appellant has established sufficient cause to warrant an order staying the proceedings in Ngong CMELC Case No. E082 of 2024 pending the hearing and determination of this appeal. Analysis And Determination 9. The jurisdiction of this Court to grant stay of proceedings pending appeal is principally anchored in Order 42 Rule 6(1) of the Civil Procedure Rules, which provides: “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 sufficient 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, RULIN G ELCA E008/2026 3

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the court to which such appeal is preferred shall be at liberty, on RULIN G ELCA E008/2026 4

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application being made, to consider such application and to make such order thereon as may to it seem just...” 10. The power to stay proceedings is discretionary. It is, however, a discretion that must be exercised judicially and on the basis of sufficient cause. The Court must balance the right of a respondent to have his case determined expeditiously against the right of an appellant to have the subject matter of his appeal preserved so that the appeal is not rendered nugatory. 11. In Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000, Ringera J. stated: “As 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.” 12. The Court is therefore required to examine the particular circumstances of the case rather than apply a mechanical formula. Relevant considerations include the existence of a RULIN G ELCA E008/2026 5

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competent appeal, whether the appeal raises an arguable issue, whether continuation of the proceedings may render the appeal RULIN G ELCA E008/2026 6

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nugatory or otherwise occasion injustice, the stage reached in the subordinate court proceedings, the promptness of the application and the overriding objective of the court to ensure the just, expeditious and proportionate resolution of disputes. 13. The Court of Appeal in David Morton Silverstein v Atsango Chesoni [2002] eKLR stated: “It is now trite law that an applicant under rule 5(2)(b) must satisfy the Court that: ‘(i) his intended appeal is an arguable one or, put another way, the intended appeal is not frivolous; (ii) unless the Court grants an order of stay to him, his intended appeal, if successful, will be rendered nugatory.” 14. Although the above principles were expressed in the context of an application under Rule 5(2)(b) of the Court of Appeal Rules, they are instructive on the broader question whether an appellate process should be protected from being overtaken by events. 15. In the present case, there is no dispute that an appeal has been filed. The impugned ruling was delivered on 22nd January 2026, while the Memorandum of Appeal was lodged on 26th January 2026. The first requirement is therefore satisfied. RULIN G ELCA E008/2026 7

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16. The next question is whether the appeal raises an arguable issue. The appeal challenges the trial court's refusal to join Elida Kerubo Nyambagera as a defendant and its decision that she should instead be called as a witness. 17. The Appellant's case is that the intended party is the first alleged transferee in the chain of transactions which it challenges as fraudulent and that her presence is therefore necessary for the effectual and complete determination of the dispute. 18. The question whether a person alleged to have participated in, or to be directly connected with a disputed chain of title should merely be called as a witness or should be joined as a party is plainly a matter to be determined on appeal. At this stage, this Court is not required to determine whether the appeal will ultimately succeed. It is sufficient that the appeal raises a bona fide question of law and procedure and is not frivolous. 19. I am therefore satisfied that the Appellant has demonstrated an arguable appeal. 20.The more substantial question is whether continuation of the proceedings before the subordinate court would prejudice the efficacy of the appeal. 21.The subject of the appeal is not an isolated interlocutory issue RULIN G ELCA E008/2026 8

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unrelated to the substance of the dispute. It concerns the constitution of the suit and the RULIN G ELCA E008/2026 9

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participation of a person whom the Appellant alleges is directly connected to the impugned transactions. 22.The Respondent argues that there is no prejudice because the intended party can be called as a witness. However, that is precisely the position challenged in the appeal. Whether the intended party ought to participate merely as a witness or as a substantive party is a matter this Court is being called upon to determine. It would therefore be premature to treat the trial court's conclusion as settled for purposes of determining the application for stay. 23.If the subordinate court proceeds with the substantive hearing and possibly determines the suit before the appeal is heard, and this Court subsequently finds that the intended party ought to have been joined, the appellate decision may have little practical utility. The proceedings may have to be revisited or substantially repeated. This would occasion unnecessary expenditure of judicial time and costs and could potentially result in inconsistent findings. 24.In that regard, the Court must consider the practical effect of refusing the stay rather than merely whether the subordinate court can technically continue with the proceedings. RULIN G ELCA E008/2026 10

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25.I am also guided by the principle that the court should avoid making orders that may result in an appeal being rendered merely academic. The discretion to stay proceedings exists precisely to prevent circumstances in which continuation of the proceedings would defeat the utility of an appeal. 26.At the same time, stay of proceedings is an exceptional remedy. A court should not lightly halt proceedings because doing so interferes with the constitutional and statutory imperative of expeditious disposal of disputes. The Court must therefore be satisfied that the circumstances justify such intervention. 27.In my view, the circumstances here justify a temporary stay pending the hearing and determination of this appeal. The appeal was filed promptly after delivery of the impugned ruling. The issue raised concerns the proper constitution of the primary suit. The subordinate court was scheduled to proceed with the hearing on 3rd June 2026. If the hearing proceeds while the question of joinder remains unresolved, there is a genuine possibility of duplication of proceedings should the appeal succeed. 28.The Court must also consider the Respondent's legitimate interest in having the primary suit determined without unnecessary delay. That interest can be RULIN G ELCA E008/2026 11

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adequately protected by imposing conditions requiring the Appellant to prosecute the appeal expeditiously. 29.I do not find it necessary to impose security as a condition for stay. The present application concerns stay of proceedings, rather than stay of execution of a monetary decree. The essential question is whether sufficient cause has been demonstrated for interrupting the trial pending the determination of the appeal. 30.The application was also not brought with inordinate delay. The ruling was delivered on 22nd January 2026, the appeal was lodged on 26th January 2026, and the present application was filed on 27th April 2026. In the circumstances of this matter, the period taken does not amount to unreasonable delay. 31.Having considered the totality of the circumstances of this matter, I am satisfied that the Appellant has established sufficient cause for the grant of a stay of proceedings. The interests of justice favour preserving the subject matter of the appeal for a reasonable period sufficient to enable this Court to determine the appeal, while ensuring that the stay does not become a means of delaying the primary suit. RULIN G ELCA E008/2026 12

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32.Consequently, the Notice of Motion dated 27th April 2026 is hereby allowed on the following terms: a) There shall be a stay of further proceedings in Ngong CMELC Case No. E082 of 2024, Wenzma Company Limited v Boniface Ayubu & Others, pending the hearing and determination of this appeal. b) The Appellant shall take all necessary steps to prosecute the appeal expeditiously and shall cause the appeal to be listed for directions within sixty (60) days from the date of this ruling. c) In default of Order 32(b), the Respondents shall be at liberty to apply for discharge or variation of the order of stay. d) The costs of the application shall abide the outcome of the appeal. It is so ordered. Dated Signed and Delivered Virtually this 24th Day of September 2026. M.D. MWANGI JUDGE In the virtual presence of: RULIN G ELCA E008/2026 13

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Ms. Chesire for the Appellant/Applicant N/A by the Respondents Court Assistant: Alex M.D. MWANGI JUDGE RULIN G ELCA E008/2026 14

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