Vijay Laxmi Shah v Mercy Makena Chweya & Muhatia Pala Auctioneers (Proposed Third Party)

Pala Auctioneers, the proposed Third Party, pursuant to express court orders issued on 30th December, 2010 in Nairobi Children’s Court Case No. 148 of 2004: Sophia Mburu v. Jackson Kamau Ndegwa, authorizing the attachment and sale of the suit property to satisfy a money decree. 3. She stated that being interested in acquiring the property; and participated in the court-supervised public auction held on 15th April, 2011, where she was declared the highest bidder for the sum of Kshs. 5,000,000. 4. The Applicant further deponed that upon being declared the highest bidder, she paid the required deposit of Kshs. 912,080.00 and subsequently cleared the remaining balance through structured monthly installments remitted directly to the Registrar of the High Court in full compliance with the auction terms and court directions. 5. The Applicant stated that having completed full payment, she notified the auctioneers, Muhatia Pala Auctioneers, who filed an application dated 4th July, 2011, in Nairobi Children’s Court Case No. 148 of 2004, seeking orders to vest the suit property in her name as the successful purchaser. 6. It was the Applicant’s disposition that on 26 th April, 2012, the court granted ex-parte orders directing the Registrar of Titles to transfer and register the land known as Nakuru Municipality Block 12/223 in her name. Following the issuance of these orders, she lodged the Transfer of Lease by Magistrate in Exercise of Power of Sale along with supporting documents to register the leasehold interest in her favor. Upon assessment and payment of stamp duty, NAKURU ELC NO. E041 OF 2023 – RULING 2

page 2 of 23

she was duly registered as the proprietor of the suit property on 20 th March, 2013, acquiring a Certificate of Lease. 7. The Applicant further stated that after receiving the Certificate of Lease and taking possession of the property, she received a bona fide offer from the Plaintiff/Respondent, Vijay Laxmi Shah, for the purchase of the suit property measuring approximately 0.1936 hectares at an agreed purchase price, and subsequently executed an Agreement for Sale dated 20th May,2013. Upon the Plaintiff/Respondent fulfilling her obligations under the Agreement, including full payment of the purchase price, the suit property was transferred to her name, and a fresh Certificate of Lease was issued on 30th May, 2013 by the District Land Registrar, Nakuru. 8. The Applicant maintained that at all material times prior to the institution of Nakuru ELC No. 359 of 2013, and the present suit, she genuinely believed she had acquired the suit property through a transparent, court-supervised public auction and held a good, indefeasible title. However, in the final disposition of Nakuru ELC No. 359 of 2013, the Court ordered the cancellation of the Certificate of Lease issued to the Plaintiff/Respondent, directed the surrender of the original lease to the District Land Registrar, Nakuru, and ordered the cancellation of all related entries in the land register, thereby restoring the title to Jackson Kamau Ndegwa. 9. Aggrieved by that judgment, the Plaintiff/Respondent lodged a Notice of Appeal on 4th July, 2023, challenging the whole judgment delivered on 29 th NAKURU ELC NO. E041 OF 2023 – RULING 3

page 3 of 23

June ,2023. Subsequently, on 5th July,2023, the Plaintiff/Respondent filed a Notice of Motion under Certificate of Urgency in Nakuru ELC No. 359 of 2013, seeking a stay of execution pending appeal, and on 14th March ,2024, the Court delivered a Ruling granting a stay of execution of the Judgment on condition that the Plaintiff/Respondent deposit Kshs. 200,000.00 as security for costs and file/serve the record of appeal within 45 days. 10. Despite the existence of the stay of execution granted on 14 th March, 2024, in respect of the Judgment dated 29th June, 2023, the Plaintiff/Respondent instituted the present suit against the Applicant. The Applicant contends that the pending Appeal in Nakuru Court of Appeal Civil Appeal No. E098 of 2024, fundamentally contests the validity of the title acquisitions, the legality of ownership transfers, and proprietary interests, which are central to the present suit. 11. The Applicant stated that the subsistence of the stay orders preserves the status quo and prevents enforcement of the Decree pending determination of the Appeal pursuant to Order 42 Rule 6 of the Civil Procedure Rules. Allowing the present suit to proceed alongside the pending Appeal creates a substantial risk of conflicting judicial decisions and severe prejudice. 12. According to the Applicant, the Plaintiff/Respondent’s conduct in pursuing this suit while appealing the underlying Judgment violates Sections 1A, 1B, 3A, and 6 of the Civil Procedure Act, as it offends the doctrine of approbation and reprobation. NAKURU ELC NO. E041 OF 2023 – RULING 4

page 4 of 23

13. The Applicant asserted that she stands to suffer great, irreparable harm and financial hardship if proceedings are not stayed, as she would be forced to defend parallel suits and incur undue legal burdens for a judgment that may ultimately be set aside or varied on appeal. 14. Finally, she contended that the joinder of Muhatia Pala Auctioneers as a Third Party is essential for the just resolution of the suit, as they conducted the auction sale pursuant to court orders and prepared the necessary documentation; their absence would deprive her of the right to seek indemnity or contribution, leading to incomplete adjudication. PLAINTIFF/RESPONDENT’S RESPONSE 15. The Plaintiff/Respondent filed a Replying Affidavit dated 16 th April, 2026, and deponed that she had purchased a parcel of land known as LR Nakuru Municipality Block 12/223 from the Defendant/Applicant through a Sale Agreement dated 20th May 2013, following which a Certificate of Lease dated 31st May, 2013 was issued to her. 16. She stated that prior to the purchase, an official search conducted on 16 th May, 2013, revealed the Defendant/Applicant as the registered proprietor of the subject parcel. The Respondent deponed that she had made good on her end of the agreement and paid the agreed purchase price, after which the transfer was effected and she was issued with the Certificate of Lease. NAKURU ELC NO. E041 OF 2023 – RULING 5

page 5 of 23

17. The Respondent further deponed that she was joined as the 3 rd Defendant in Nakuru ELC No. 359 of 2013 via an amended plaint dated 21st January, 2014, wherein the plaintiff therein, Jackson Kamau Ndegwa, sought prayers to have the transaction between the Defendant and herself cancelled and the parcel reverted to Mr. Ndegwa. 18. She deponed that in the judgment of that suit, the court noted at paragraphs 48 and 49 that the further transfer of the suit parcel to her was carried out when there was a court order barring the same, and made a finding of fact at paragraph 51 that the said orders were made in the presence of counsel holding brief for the Defendant's advocate. 19. The Respondent further deponed that the suit was eventually allowed vide the judgment delivered on 29th June, 2023 by Honourable Mwangi Njoroge, which led to the cancellation of the Certificates of Lease issued to the Defendant and subsequently to herself, and directed the Land Registrar Nakuru to issue a new certificate of lease to Mr. Ndegwa. 20. She deponed that being aggrieved by the judgment, she exercised her constitutional right and appealed against the entire judgment vide a Notice of Appeal dated 4th July, 2023, in the Court of Appeal at Nakuru, which did not preclude her from seeking a way out of the transaction that was done in violation of a court order through the Defendant's deliberate non-disclosure of material facts and misrepresentation. NAKURU ELC NO. E041 OF 2023 – RULING 6

page 6 of 23

21. It was the Respondent’s case that she subsequently filed the instant suit vide a plaint dated 14th November, 2023, against the Defendant/Applicant seeking compensation for breach of contract, as the Defendant/Applicant did not issue a clean title for the subject property as agreed. Further, the cause of action in Nakuru Civil Appeal No. E098 of 2024 was purely based on the judgment rendered against her in Nakuru ELC No. 359 of 2013, whereas the cause of action in the present suit was one for recovery and compensation for the cancelled Certificate of Lease; as such, the Defendant's Application for stay of proceedings was devoid of merit. 22. On the issue of joinder of Muhatia Pala Auctioneers as a third party in the present suit, the Respondent deponed that, the same was neither here nor there, as the Sale Agreement was between her and the Defendant, and the proposed third party was the one in breach of the obligations owed to her. 23. Finally, the Respondent deponed that she stood to suffer an injustice and irreparable loss if the application was allowed, as she had neither free possession of the subject property nor the purchase price. She deponed that she was already prejudiced having incurred costs in defending her claim in Nakuru ELC No. 359 of 2013 as a bona fide purchaser for value of the property at the time. DEFENDANT/APPLICANT’S RESPONSE 24. The Defendant/Applicant filed a further affidavit dated 4 th May, 2026, and stated that the Plaintiff/Respondent did not deny that the present suit arose NAKURU ELC NO. E041 OF 2023 – RULING 7

page 7 of 23

from the same parcel of land known as Nakuru Municipality Block 12/223, which was the subject of proceedings in Nakuru ELC No. 359 of 2013 and was currently the subject of a pending appeal in Nakuru Civil Appeal No. E098 of 2024. 25. Furthermore, she noted that the Plaintiff/Respondent had not denied that the Judgment delivered on 29th June, 2023, directly affected the validity of her title, the legality of the transfer process, the cancellation of the lease issued in her favor, and the subsequent restoration or reversion of interests in the suit property. 26. The Applicant contended that the present suit was expressly founded on the said Judgment and that compensation was sought on the premise that the title transferred was allegedly defective; thus, the pending Appeal had a direct bearing on those proceedings. 27. In response to paragraphs 7 to 11, the Applicant clarified that a perusal of the proceedings showed the court had indeed varied orders on 17th May, 2013, after it was demonstrated that the Plaintiff had already been evicted and was not in occupation when the orders were issued, directing status quo to be maintained pending inter partes hearing on 23rd May,2013. 28. She further pointed out that in the Judgment delivered on 29 th June, 2023, at paragraph 51, reference was made to issuing a status quo order inter partes pending hearing of her application dated 16th May, 2013, which order the NAKURU ELC NO. E041 OF 2023 – RULING 8

page 8 of 23

Court relied upon in finding that her subsequent transfer of the property to the Plaintiff was valid. The Applicant stated that this reference did not alter the true nature and tenor of the 13th May, 2013, order which only related to restraining disposition or transfer of the property, not the eviction of the Plaintiff in Nakuru ELC No. 359 of 2013 pending inter partes hearing. 29. She asserted that a party could not simultaneously pursue an Appeal challenging a judgment while maintaining a fresh suit founded on that same Judgment, as doing so created a real risk of duplicity, conflicting determinations, embarrassment to the Court process, and prejudice to the parties. Contrary to assertions, the present Application was not an abuse of court process, but a legitimate invocation of the Court’s jurisdiction to preserve the subject matter and integrity of the appellate process pending the hearing and determination of the pending Appeal. 30. The Applicant maintained that proceeding with the present suit before the Appeal was determined created an unnecessary issue that might substantially affect, vary, reverse, or render academic the findings of the appellate court, making a stay necessary to prevent abuse of process and protect the due administration of justice. 31. She contended the Plaintiff/Respondent had failed to demonstrate irreparable loss or show that evidence would be lost if a stay of proceedings was granted. Conversely, the Applicant stood to suffer real and substantial prejudice if forced to defend a suit founded on a judgment that might be set aside or altered by the Court of Appeal. NAKURU ELC NO. E041 OF 2023 – RULING 9

page 9 of 23

32. The Applicant stated that the Plaintiff/Respondent’s reliance on the doctrine of res judicata was misconceived, as the Application did not seek to re-open or re-argue Nakuru ELC No. 359 of 2013. Further, any question concerning the legality, propriety, validity, or regularity of the sale and transfer process could not be conclusively determined in the absence of Muhatia Pala Auctioneers, and the allegation regarding privity of contract was misconceived. She urged the court to allow the Application as prayed. DEFENDANT/APPLICANT’S SUBMISSION 33. Counsel for the Defendant/Applicant filed submissions and identified the following issues for determination: a) Whether the Applicant has met the threshold to warrant an order for stay of proceedings b) Whether Muhatia Pala Auctioneers is a necessary and proper party to these proceedings c) Which party shall bear the costs of the Application? 34. On the first issue, as to whether the Applicant has met the threshold to warrant an order of stay of proceedings, counsel acknowledged that the court possessed discretionary powers to determine whether to grant an order staying proceedings, emphasizing that such judicial discretion ought to be exercised to avoid a miscarriage of justice, take into account the overriding objective, balance the interests of both parties, and establish any appropriate terms for the stay. 35. Counsel relied on Order 42 Rule 6(1) of the Civil Procedure Rules as the guiding law on stay of proceedings pending the hearing and determination of NAKURU ELC NO. E041 OF 2023 – RULING 10

page 10 of 23

an appeal, contending that the court had to evaluate whether the Applicant had satisfied the required legal threshold before granting such orders. Counsel further relied on the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), and set out the test to be met, namely; whether the Applicant had established a prima facie arguable case; whether sufficient cause had been shown that it was in the interest of justice to grant the stay; and whether the Application was filed expeditiously. 36. Addressing the first limb of the test, counsel submitted that the pending appeal filed by the Plaintiff/Respondent against the judgment in ELC 359 OF 2013 was neither frivolous nor vexatious, but raised substantial, weighty, and arguable questions of law and fact for determination by the Court of Appeal. 37. In support of the submission that an applicant need only show an arguable appeal that was not frivolous, counsel relied on the cases of UAP Insurance Company Ltd v Michael John Beckett [2004] eKLR and University of Nairobi v Ricatti Business College of East Africa [2020] eKLR, regarding the nature of an arguable appeal. 38. Mr. Kisala pointed out that the Plaintiff/Respondent’s appeal, registered as Nakuru Civil Appeal E098 of 2024: Vijay Laxmi Shah v Jackson Kamau, Mercy Makena Chweya & District Land Registrar Nakuru, directly challenged the Judgment in ELC 359 OF 2013, which formed the NAKURU ELC NO. E041 OF 2023 – RULING 11

page 11 of 23

legal foundation of the present claim by raising issues on the legality of the judgment, title status, and resulting legal consequences. 39. Counsel further submitted that the Plaintiff/Respondent’s claim relied on an alleged defect in title flowing directly from the judgment under appeal, the pending appeal touched the very root and substratum of these proceedings; and allowing this suit to proceed concurrently risked conflicting decisions between two courts and would subject the Applicant to defending multiple proceedings over the same subject matter. 40. On the second limb regarding sufficient cause and the interest of justice, counsel relied on the case of Christopher Ndolo Mutuku & Another v CFC Stanbic Bank Limited [2015] eKLR, and argued that the totality of circumstances compelled a stay because these proceedings were deeply intertwined with the pending appeal, which challenged the legality of the judgment underpinning the Plaintiff’s suit. 41. On the question whether the Applicant will suffer substantial loss, counsel relied on the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, and submitted that unless a stay is granted, the Applicant would be forced to defend proceedings founded upon an unsettled judgment that might collapse upon appellate review. Counsel further relied on the cases of Mwongeli Self Help Group & 3 others v Kitui Teachers DT Sacco Society Limited (Civil Appeal E747 of 2024) [2024] and Niazsons (Kenya) Ltd v China Road & Bridge Corporation (Kenya) Ltd NAKURU ELC NO. E041 OF 2023 – RULING 12

page 12 of 23

(Nairobi HCCC No. 126 of 1999) in support of staying the proceedings and submitted that the balance of convenience favored preserving the proceedings pending the appellate court’s determination. 42. On the third limb regarding promptitude, counsel submitted that the Application was filed without unreasonable delay, timeously in good faith upon apprehending the risk of parallel adjudication. 43. Regarding the second main issue, counsel sought the joinder of Muhatia Pala Auctioneers as a Third Party, submitting that the suit’s factual foundation traced directly to the public auction process through which the Applicant acquired the suit property, and relied on Order 1 Rule 10(2) of the Civil Procedure Rules, submitting that the court had the discretion to order the joinder of any party necessary to enable complete and final adjudication of all questions in controversy. 44. Counsel also grounded the prayer for joinder on Order 1 Rule 15 of the Civil Procedure Rules governing Third Party procedure, and submitted that any alleged liability against the Applicant connected directly to the auction process, entitling the Applicant to seek contribution or indemnity. Counsel further submitted that as a general legal principle, joinder was proper not only where a direct cause of action existed against a party, but whenever their presence was required for a complete determination of the suit. 45. Mr. Kisala relied on the cases of Pravin Bowry v John Ward & Another [2015] eKLR. Counsel further cited the case of NAKURU ELC NO. E041 OF 2023 – RULING Civicon Limited v 13

page 13 of 23

Kivuwatt Limited & 2 Others [2015] eKLR regarding the threshold of interest required for joinder. Applying these principles, counsel submitted that Muhatia Pala Auctioneers advertised the property, conducted the auction, received the deposit, declared the Applicant the successful purchaser, and facilitated the transfer, making them central to the root transaction. 46. Counsel also relied on the case of Deported Asians Property Custodian Board v Jaffer Brothers Limited [1999] 1 EA 55 (as cited in Pravin Bowry Supra)) regarding the broad application of joinder rules to avoid multiplicity of suits. It was submitted that resolving liability for the alleged defect in title required inquiring into the authority, representations, documentation, and execution of the public auction, making the Auctioneer's involvement central to the dispute. 47. Counsel refuted the Plaintiff’s objections based on privity of contract, clarifying that joinder was sought to bring all material actors before the court to determine issues of contribution, indemnity, and factual responsibility within a single proceeding, and cited the case of Salama Beach Hotel Limited & 2 Others v Kenyariri & Associates Advocates [2016] eKLR to emphasize that disputes should be determined on their substantive merits rather than disposed of on technical objections. 48. Counsel maintained that the Auctioneer had a sufficient legal interest and that their inclusion as a Third Party would assist the court, avoid multiple NAKURU ELC NO. E041 OF 2023 – RULING 14

page 14 of 23

litigation, and ensure binding finality. Counsel therefore urged the court to find Muhatia Pala Auctioneers a necessary and proper party under Order 1 Rule 10(2) and Order 1 Rule 15 of the Civil Procedure Rules and grant leave for joinder. Counsel further urged the court to allow the Application with costs. PLAINTIFF/RESPONDENT’S SUBMISSION 49. Counsel for the Plaintiff/Respondent filed submissions dated 24th April, 2026, and identified one issue for determination as to whether the Defendant/Applicant’s Application for stay of proceedings herein is merited. 50. On the general principles governing stay of proceedings, counsel submitted that the concept of staying proceedings is inherently antithetical to the constitutional mandate requiring the expeditious administration of justice and the procedural requirement for continuous day-to-day hearings, thereby setting an intentionally high threshold for its grant to avoid unduly limiting or negating access to justice. 51. Mr. Kisila observed that the procedural rules contain no express provision for staying proceedings, necessitating reliance on analogy or the court's inherent jurisdiction under Order 42 Rule 6, and cited the case of Mocha Hotel Ltd v Kwanza Estate Limited (Environment & Land Case No. 14 of 2022) regarding the governing conditions. Emphasizing the grave weight of a stay order, counsel relied on the case of Kenya Wildlife Services v James Mutembei [2019] eKLR. Counsel therefore submitted that the NAKURU ELC NO. E041 OF 2023 – RULING 15

page 15 of 23

Defendant’s Application lacks merit and constitutes an abuse of the court process, and urged the court to dismiss it with costs. 52. Addressing the Defendant’s argument that the suit is res judicata due to the pending appeal against the judgment in Nakuru ELC No. 359 of 2013, counsel clarified the factual matrix, stating that the Plaintiff was joined as a Defendant in that suit, where judgment was delivered on 29th June, 2023, which ordered the cancellation of certificates of lease. Counsel explained that while the Plaintiff lodged Nakuru COACA No. E098 of 2024 against that judgment, and simultaneously instituted the present suit seeking compensation for breach of contract against the Defendant for issuing a defective title, rendering the subject matter in both suits distinct and defeating the plea of res judicata. 53. In support of the submission that a party's right of appeal must be balanced against a successful litigant's right not to be deprived of the fruits of judgment, counsel cited the case Renna v Kenya Power & Lighting Company (Civil Case 13 of 2020) [2025]. Counsel further submitted that the Defendant disposed of the subject property in violation of a trial court’s order issued on 13th May, 2013, demonstrating that the Application is a frivolous attempt to pre-empt the suit's outcome and defeat justice. 54. Regarding the Applicant's prayer to join Muhatia Pala Auctioneers as a Third Party, counsel argued that the auctioneer is a stranger to the cause of action, as the sale agreement was executed solely between the Plaintiff and NAKURU ELC NO. E041 OF 2023 – RULING 16

page 16 of 23

the Defendant, and any joinder would be defeated by the doctrine of privity of contract. Counsel further relied on the case of Muchanga Investments v Safaris Unlimited (Africa) Limited [2009], where the court held that no party should have a right to squander judicial time. 55. On the limb of substantial loss, counsel submitted that the Defendant/Applicant failed to detail or prove any specific, irreparable loss that would be suffered if a stay of proceedings were denied. Counsel contended that the Defendant filed the Application merely to stall justice and evade liability for disposing of property contrary to court orders, noting further that the Defendant neither lodged the pending appeal nor deposited any security. 56. Highlighting that substantial loss is the foundation for stay orders; counsel relied on the case of Kenya Shell Limited v Kibiru [1986] KLR 410, and reiterated that the mere assertion of res judicata lacked merit and could not justify staying proceedings in this matter. Counsel further relied on the case of Nyatera v Nyakundi [2023] KEHC 3086 (KLR) (Ruling), and stated that the judicial duty is to minimize the risk of injustice, and prioritize the expeditious administration of justice over an unmerited request for stay, arguing that the Defendant failed to adduce sufficient evidence of irreparable harm. 57. On the limb as to whether the application has been made without unreasonable delay, counsel argued that equity does not aid the indolent, noting that despite the suit being filed in 2023, the Defendant waited until NAKURU ELC NO. E041 OF 2023 – RULING 17

page 17 of 23

after the conclusion of discovery to bring this Application. Counsel pointed out that this Application was preceded by a dismissed jurisdictional challenge based on an arbitration clause, demonstrating a persistent pattern of tactical applications designed to stall progress rather than pursue a genuine remedy. 58. On the test for inordinate delay, counsel relied on the cases of Utalii Transport Company Limited & 3 others v NIC Bank Limited & another [2014] and Usomi Limited & another v Mutinda (Civil Appeal E1193 of 2024) [2026] (citing Re Global Tours Limited, Nairobi High Court Winding Up Cause No. 43 of 2000), and urged the court to dismiss the Defendant/Applicant’s Application with costs to the Plaintiff/Respondent. ANALYSIS AND DETERMINATION 59. The issues for determination are: a) Whether the Applicant has met the threshold for grant of an order of stay of proceedings pending the determination of Nakuru Court of Appeal Civil Appeal No. E098 of 2024 b) Whether Muhatia Pala Auctioneers should be joined as a Third Party? 60. Halsbury’s Law of England, 4th Edition, Vol. 37 pages 330 and 332, sets out the guidelines to be met in Applications for stay of proceedings as follows: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation NAKURU ELC NO. E041 OF 2023 – RULING 18

page 18 of 23

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 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.” 61. The Court of Appeal in the cases of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) and David Morton Silverstein v. Atsango Chesoni [2000] KECA 287 (KLR) set out the following principles that should guide Courts in applications seeking to stay proceedings: (1) If there is a pending appeal in the higher court. (2) The Applicant should explain why a stay has not been sought in the higher court since the policy is to move to the said court, which is better placed to calibrate its orders. (3) There must be a demonstration that the appeal raises substantial questions to be determined or is otherwise arguable. (4) There must be a demonstration of the appeal being rendered nugatory. (5) Exceptional circumstances must be demonstrated which make the stay of proceedings warranted as opposed to hearing the case concluded safely and all arising grievances taken up on a single appeal. NAKURU ELC NO. E041 OF 2023 – RULING 19

page 19 of 23

(6) The Applicant must demonstrate that the application was filed expeditiously and without delay. 62. In the case of Kenya Wildlife Services v Jane Mutembi (supra), it was held that: “Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent. 63. Similarly, in the case of Re Global Tours & Travel Ltd HCWC No. 43 of 2000 Ringera, J (as he then was) held that: “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. 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 case, 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 utilization of judicial time and whether the application has been brought expeditiously.” NAKURU ELC NO. E041 OF 2023 – RULING 20

page 20 of 23

64. It is not in dispute that the Plaintiff was a party in Nakuru ELC No.359 of 2013 and a judgment was delivered on 29th June, 2023, where the certificate of lease was cancelled. The Plaintiff/Respondent later appealed against the Judgment vide Nakuru Court of Appeal Civil Appeal No. E098 of 2024, which is still pending hearing and determination. 65. The current suit seeks compensation for the cancellation of the title, which the Plaintiff had acquired from the Defendant. It is obvious that the outcome of the pending Appeal may directly affect the determination of the present suit. The Plaintiff is using two parallel courts to pursue justice in respect of the same subject matter. The Plaintiff seeks compensation for the breach of contract in respect of the agreement for the sale of the suit land whose title was cancelled. 66. The Plaintiff has filed an Appeal to challenge the cancellation of that title, and what if the Court of Appeal were to grant her orders in the Appeal, what would happen to this case where she wants to be compensated, and which relief would she choose? The filing of two different suits in two different courts seeking reliefs whose outcomes may be different in respect of the same subject matter may embarrass the court. 67. The court is cognizant of the fact that the power to grant an order of stay of proceedings should be exercised sparingly and only in exceptional circumstances as such an order may infringe on a litigant’s right to conclude a trial on merit without undue delay by interlocutory applications for stay of proceedings in a higher court. NAKURU ELC NO. E041 OF 2023 – RULING 21

page 21 of 23

68. I find that the Defendant/Applicant has met the threshold for grant of stay of proceedings and that the Plaintiff will not suffer any prejudice if the proceedings are stayed pending the determination of the Appeal. The Plaintiff can decide in which forum she wants to pursue her claim. If it is in the Court of Appeal, then this case has to be stayed pending the outcome of the Appeal. If she chooses this court then, she would know what to do with the pending appeal. 69. On the issue as to whether Muhatia Pala Auctioneers should be joined as a Third Party, the Applicant has demonstrated that she got her title from a court- supervised auction conducted by Muhatia Pala Auctioneers, whose actions may give rise to a claim for contribution or indemnity. Under Order 1 Rule 15 of the Civil Procedure Rules, a defendant can seek court leave via an ex parte Chamber Summons supported by an affidavit within 14 days of the close of pleadings to join a Third Party for contribution, indemnity, or connected reliefs. I find that the proposed Third Party has sufficient connection with the transaction to warrant joinder. 70. I have considered the Application, the responses, the submissions by counsel, together with relevant judicial authorities and find that the Defendant/Applicant’s Notice of Motion dated 9th March, 2026, has merit and is therefore allowed as prayed. The proceedings in this case are hereby stayed pending the hearing and determination of the Nakuru Court of Appeal Civil Appeal No. E098 of 2024. The Applicant is granted leave to issue a NAKURU ELC NO. E041 OF 2023 – RULING 22

page 22 of 23

Third-Party Notice against Muhatia Pala Auctioneers within 14 days. The costs of the Application shall be in the cause. DATED, SIGNED AND DELIVERED AT NAKURU THIS 1ST DAY OF OCTOBER 2026. M. A. ODENY JUDGE NAKURU ELC NO. E041 OF 2023 – RULING 23

page 23 of 23