Benard Said Michael Mbarukh & 2 others v Rose Everlyn Tendwa

a) Spent; b) Pending the hearing and determination of the application, this Honourable Court be pleased to stay the hearing of this suit and all further proceedings herein; c) Pending the hearing and determination of the Defendant/Applicant's application for stay of execution and injunction before the Court of Appeal in Civil Application No. E117 of 2026, this Honourable Court be pleased to stay all further proceedings in this suit; and d) The costs of the application be in the cause. Applicant's Case 2. The application is premised on the grounds on its face and the Supporting Affidavit sworn by the Applicant on 7th July 2026. The Applicant depones that she is the Defendant in this suit and is competent to swear the affidavit. She states that this Court is seized of the suit which is scheduled for further proceedings and that she has lodged an application before the Court of Appeal seeking, among other orders, stay of execution and injunctive relief in respect of the subject matter giving rise to these proceedings. She annexed a copy of the said application and states that the determination of the application before the Court of Appeal is likely to have a direct bearing on the proceedings before this Court. Her contention is that unless this Court stays the hearing and all further proceedings pending determination of the application before the Court of Appeal, the proceedings before the appellate court may be rendered nugatory and she may suffer substantial prejudice. The Applicant further depones that no prejudice will be occasioned to the Plaintiffs if the orders sought are granted, whereas she stands to suffer irreparable prejudice if the proceedings before this Court continue before the Court of Appeal determines 2|Page HOMA BAY ELC LC E023 OF 2025, RULING

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the pending application. She therefore urges the Court to exercise its discretion in the interests of justice, fairness and the overriding objective of the Court. Respondents' Case 3. The application is opposed. The Plaintiffs/Respondents filed a joint Replying Affidavit sworn on 28th July 2026. The Respondents acknowledge that this Court is presently seized of the suit but contend that the suit ought to proceed to determination without further interruption or delay. They dispute the Applicant's assertion concerning the proceedings before the Court of Appeal and state that, having regard to the history of the matter, there are reasonable grounds to believe that the alleged application may be another attempt to delay the determination of this suit. The Respondents contend that although the purported application before the Court of Appeal was dated 10th April 2026, persons said to be respondents therein, namely Yudah Kengera Tendwa and Patrick Michael Said, were unaware of its existence and had not been served. They further contend that the Applicant did not provide sufficient tangible evidence demonstrating the status of the alleged proceedings before the Court of Appeal or demonstrating that the application before that Court concerns the present proceedings. The Respondents' further contention is that the alleged Court of Appeal application is directed against the Applicant's coadministrators who are not parties to the present suit and that neither of the Plaintiffs is a party to that application. The Respondents also point out that a similar application had previously been made by the Applicant in Homa Bay High Court Probate and Administration Cause No. 5 of 2013 on 28th July 2022 and was dismissed for want of merit. The Respondents further allege that since commencement of this suit, the Applicant has repeatedly sought to delay its progress through adjournments and failure to participate in court-directed 3|Page HOMA BAY ELC LC E023 OF 2025, RULING

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processes, including mediation. They refer to the proceedings of 18th March 2026 in which, according to them, the Court expressed displeasure at the Applicant's conduct and directed her to comply with court directions, failing which her Defence and Counterclaim would be struck out. The Respondents therefore contend that the present application is intended to further delay the hearing and determination of the suit. They further contend that they continue to suffer prejudice because they have been unable to enjoy and utilize their respective interests in the suit property, while the Applicant continues to occupy and benefit from her portion thereof. The Respondents state that the dispute concerns Land Parcel No. KANYADA/KOTIENO/KATUMA'B/297, which they state formed part of the estate of their father and was distributed in Homa Bay High Court Succession Cause No. 5 of 2013. According to the Respondents, the Applicant was awarded the front shop which she continues to utilize, whereas the Respondents were awarded residential rooms at the back of the premises. They contend that the Applicant continues to occupy one of the structures allocated to them and has refused to vacate, hence the institution of the present proceedings. The Respondents accordingly urge the Court to dismiss the application and allow the suit to proceed to hearing and determination. Submissions 4. The application was canvassed by way of written submissions. I have considered the Applicant's submissions, the Respondents' submissions, the Notice of Motion, the Supporting Affidavit, the Replying Affidavit and the documents annexed thereto. The Applicant submits that this Court has jurisdiction and discretion to stay proceedings where the circumstances of the case justify such an order. She argues that the proceedings before the Court of 4|Page HOMA BAY ELC LC E023 OF 2025, RULING

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Appeal directly concern the subject matter of this suit and that continuation of the suit creates a real possibility of conflicting orders. The Applicant further submits that she is in occupation of the suit premises and that an order of eviction before determination of the proceedings before the Court of Appeal would cause her substantial and irreparable prejudice and could render the intended appeal nugatory. The Respondents, on the other hand, submit that the Applicant has failed to satisfy the high threshold applicable to an application for stay of proceedings. They contend that the alleged proceedings before the Court of Appeal have not been shown to have any direct bearing upon the present suit and that the Applicant has not demonstrated how continuation of this suit will render the appellate proceedings nugatory. The Respondents further submit that the application has been brought in the context of a history of delay and non-compliance with court directions and that the Court ought to protect the Plaintiffs' constitutional right to have their dispute determined without unreasonable delay. Issues for Determination 5. Having considered the pleadings, affidavits and submissions, the following issues arise for determination: i) Whether this Court has jurisdiction and discretion to stay the proceedings herein; ii) Whether the Applicant has satisfied the threshold for grant of an order staying proceedings pending determination of the proceedings before the Court of Appeal; and iii)Who should bear the costs of the application. Analysis and Determination 5|Page HOMA BAY ELC LC E023 OF 2025, RULING

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Whether this Court has jurisdiction and discretion to stay proceedings 6. Order 42 Rule 6(1) of the Civil Procedure Rules 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...” 7. The provision makes it clear that the filing or existence of an appeal does not, by itself, operate as a stay of proceedings. A party seeking such an order must move the Court and demonstrate sufficient cause. The jurisdiction is also supported by the Court's inherent power under Section 3A of the Civil Procedure Act. That provision preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. However, the discretion is not exercised as a matter of course. Stay of proceedings is materially different from stay of execution. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), Gikonyo J. expressly cautioned against conflating the two remedies. The Court stated: “Stay of proceeding 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 proceeding is high and stringent.” 6|Page HOMA BAY ELC LC E023 OF 2025, RULING

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8. The learned Judge proceeded to adopt the principles stated by Ringera J. in Re Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000, where the Court 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.” Ringera J. further stated that in exercising that discretion, “the court should essentially weigh the pros and cons of granting or not granting the order. ” The Court identified, among other considerations, “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 utilization of judicial time and whether the application has been brought expeditiously.” 9. The foregoing principles remain applicable. Indeed, the Court of Appeal has more recently reiterated that an application for stay of proceedings requires the Court to consider whether continuation of the proceedings would occasion prejudice of such a nature that an eventual appellate remedy would be rendered nugatory. 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 of Appeal emphasized the exceptional nature of the remedy and stated that stay may be warranted where failure to grant it would tend to render the appellate court's eventual order nugatory. 7|Page HOMA BAY ELC LC E023 OF 2025, RULING

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10.In that case, the Court further observed that stay of proceedings pending an interlocutory appeal should only be granted where the circumstances demonstrate significant prejudice to the applicant if the proceedings are allowed to continue. 11.The Court of Appeal's approach is consistent with the general principle governing Rule 5(2)(b) applications. In Kariuki v Kariuki [2021] KECA 205 (KLR), the Court reiterated that the applicant must demonstrate an arguable appeal and that, absent stay, the successful appeal would be rendered nugatory. The Court emphasized that an arguable appeal is not one which must necessarily succeed but one which deserves consideration and is not frivolous. 12.The Supreme Court has equally recognized the exceptional character of a stay of proceedings. In Khan v International Commercial Company (K) Ltd [2023] KESC 84 (KLR), the Supreme Court stated that, “We remain alive to the fact that the grant of an order for stay of proceedings is to be entertained only in deserving cases as it impacts the right to expeditious trial. Such orders are discretionary in nature, exercisable by the court upon consideration of the facts and circumstances of each case.” 13.The question therefore is not whether the Applicant has merely demonstrated the existence of proceedings before the Court of Appeal. The question is whether, having regard to all the circumstances, the continuation of this suit would cause such prejudice or injustice that it is necessary, in the interests of justice, to interrupt the Plaintiffs' right to have their suit heard and determined without undue delay. 8|Page HOMA BAY ELC LC E023 OF 2025, RULING

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Whether the Applicant has established sufficient cause for stay 14.The Applicant's primary contention is that she has filed an application before the Court of Appeal seeking stay of execution and injunctive relief and that determination of that application will have a direct bearing on the present proceedings. I have carefully considered the material placed before me. It is not disputed that the Applicant has exhibited a document purporting to be an application before the Court of Appeal. However, the mere existence of an application before the appellate court does not automatically justify a stay of proceedings before the trial court. The Applicant was required to go further and demonstrate the nexus between the proceedings before the Court of Appeal and the issues requiring determination in this suit. 15.This distinction is important. The present suit is before this Court for determination of the dispute between the parties before it concerning their respective rights and interests in the suit property. The alleged application before the Court of Appeal, according to the evidence placed before this Court, concerns proceedings arising from the succession proceedings and is directed against persons whom the Respondents state are not parties to this suit. The Applicant has not sufficiently demonstrated that the Court of Appeal has stayed the succession proceedings, suspended the effect of any orders made therein, or directed this Court to halt its proceedings. There is also no order from the Court of Appeal presently before this Court restraining the hearing of this suit. Therefore, I have to distinguish between a pending application seeking stay and an actual order of stay. The former does not have the legal effect of the latter. 16.If the Court of Appeal ultimately grants an order which affects the proceedings or the subject matter before this Court, this Court will, of course, be bound to 9|Page HOMA BAY ELC LC E023 OF 2025, RULING

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give effect to the applicable order of the superior appellate court. But until such an order is made, the mere possibility that the Court of Appeal may grant relief cannot, without more, justify bringing this suit to a halt. The Applicant has also not demonstrated with sufficient particularity what order this Court is likely to make that would render the proceedings before the Court of Appeal nugatory. The Applicant's apprehension is essentially that this Court may proceed to hear and determine the suit and that the Court of Appeal may thereafter issue orders affecting the succession proceedings or the Applicant's occupation of the property. That apprehension, without evidence of a concrete and irreversible prejudice, is insufficient to meet the stringent threshold applicable to stay of proceedings. 17.In Muraya v Muraya [2025] KECA 1222 (KLR), the Court of Appeal addressed a similar contention and held that an application founded merely upon apprehension or fear will generally not suffice. The Court stated: “First, an application for stay of proceedings, particularly one based solely on the applicants’ apprehension or fear, is generally not considered sufficient grounds for granting a stay of proceedings. Courts require more concrete evidence of potential harm or prejudice that would arise if the proceedings were to continue. A party seeking a stay of proceedings must demonstrate more than just a subjective feeling of apprehension or fear about the potential outcome of the case. The applicant typically needs to show that proceeding with the case would cause them substantial loss or irreparable harm, which could render their appeal, if successful, nugatory.” 18.The Court further reiterated the principle from Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & another, Civil Application No. NAI 50 of 2001, that whether an appeal would be rendered nugatory depends upon the facts of 10 | P a g e HOMA BAY ELC LC E023 OF 2025, RULING

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each particular case. In the present matter, the Applicant has not demonstrated that the hearing and determination of the present suit would permanently deprive the Court of Appeal of the ability to grant effective relief. Indeed, if the Court of Appeal ultimately makes an order affecting the parties' rights or the subject matter, such order will have to be complied with. The Applicant has therefore not established that the appellate proceedings would become worthless, futile or incapable of effective determination merely because the present suit is heard. 19.The Court is equally alive to the Applicant's contention that she is in occupation of the suit premises and that she may be exposed to eviction. That issue, however, must be considered in the context of the orders actually sought in the present suit and the evidence before this Court. The mere possibility of an adverse determination does not, without more, constitute the exceptional circumstance necessary to stay proceedings. Further, the Court must consider the Plaintiffs' right to have their dispute determined expeditiously. Article 50(1) of the Constitution guarantees every person the right to have a dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Article 159(2)(b) of the Constitution expressly provides that “justice shall not be delayed.” Sections 1A and 1B of the Civil Procedure Act similarly impose upon the Court and the parties an obligation to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. The Court must therefore strike a proper balance between the Applicant's right to pursue her appellate remedies and the Respondents' right to have their suit determined without unreasonable delay. 20.The history placed before the Court is relevant in this regard. The Respondents have exhibited material relating to previous attempts at mediation, the 11 | P a g e HOMA BAY ELC LC E023 OF 2025, RULING

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Applicant's alleged failure to participate in mediation, the directions issued on 18th March 2026 and the subsequent filing of the present application shortly before the scheduled hearing of the suit. I must, however, exercise caution. The Court should not determine allegations of deliberate delay conclusively at this interlocutory stage unless such conduct is established by the record. Nevertheless, the history is relevant when considering whether the present application should result in another interruption of proceedings. The present application was filed on 7th July 2026. The alleged Court of Appeal application was dated 10th April 2026. There is therefore a period of approximately three months between the alleged filing of the appellate application and the filing of the present application. The Applicant has not satisfactorily explained why the present application could not have been made earlier if, as now contended, continuation of this suit posed an immediate and serious threat to the efficacy of the proceedings before the Court of Appeal. The consideration of promptness is particularly important because stay of proceedings interrupts the progress of litigation and may have the effect of postponing indefinitely the hearing of a dispute which has already been instituted and is awaiting determination. 21.In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), the Court declined stay after finding that the order would merely serve to delay the matter. The Court stated: “In the instant case it is my considered opinion that it would not be in the interest of justice to exercise court’s discretion and grant stay of proceedings as it will only serve the purpose of delaying the matter that is pending in the lower court.” 12 | P a g e HOMA BAY ELC LC E023 OF 2025, RULING

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22.The circumstances before this Court are distinguishable from a case where an appellate court has already issued an order staying the proceedings, or where the continuation of the trial would conclusively defeat the subject matter of an appeal. See Okiya Omtatah Okoiti & another v Anne Waiguru, Cabinet Secretary, Devolution and Planning & 3 others [2015] KECA 581 (KLR). That is not the situation demonstrated before this Court. The Applicant has not established a comparable and immediate risk. 23.The Court is also guided by the principle that judicial time is a scarce resource. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR, the Court of Appeal observed: “Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice.” 24.It would therefore not be proper for this Court to suspend proceedings merely because an application is pending before another court unless the circumstances demonstrate that such suspension is necessary to avoid injustice, conflicting orders, substantial prejudice or the frustration of the appellate process. The Applicant has not crossed that threshold. The effect of the pending Court of Appeal application 25.There is a further consideration. The Applicant has represented to this Court that she has moved the Court of Appeal for stay of execution and injunctive relief. The Court of Appeal is a superior appellate court with jurisdiction to determine the application placed before it. If that Court considers that the circumstances warrant preservation of the subject matter or stay of 13 | P a g e HOMA BAY ELC LC E023 OF 2025, RULING

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proceedings, it is open to it to issue appropriate orders. This Court should not speculate on what the Court of Appeal may or may not decide. Nor should this Court pre-empt the appellate court's determination by granting a stay merely on the assumption that the appellate court may subsequently grant the relief sought before it. The proper course is to allow the respective courts to exercise their jurisdiction within the confines of the matters properly before them. I therefore find that the existence of Civil Application No. E117 of 2026, without an order from the Court of Appeal staying the present proceedings or demonstrating an immediate risk that the appellate proceedings will be rendered nugatory, does not constitute sufficient cause for this Court to stay ELC Suit No. E023 of 2025. Whether the interests of justice favour stay 26.The overriding consideration is whether, upon weighing the competing interests, justice requires that these proceedings be halted. On one hand is the Applicant's right to pursue her appellate remedies and to seek preservation of the subject matter pending determination of her application before the Court of Appeal. On the other hand are the Plaintiffs' right to expeditious determination of their suit and the public interest in the efficient utilization of judicial time. The Applicant has not demonstrated that continuation of this suit will render the proceedings before the Court of Appeal nugatory. She has also not demonstrated an exceptional circumstance warranting the interruption of the trial. Conversely, the Respondents have demonstrated that the suit has already been pending for a considerable period and that further interruption would delay its determination. The Court is therefore not persuaded that the interests of justice require a stay of proceedings. 14 | P a g e HOMA BAY ELC LC E023 OF 2025, RULING

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Costs 27.On costs, the general rule under Section 27 of the Civil Procedure Act is that costs follow the event, although the Court retains discretion as to the person by whom they are to be paid. The Applicant has not established sufficient grounds to warrant the stay sought. The Respondents have been compelled to oppose an application which, in the circumstances of this case, has not met the requisite threshold. I therefore find no reason to depart from the general rule. Disposition 28.In the result, the Defendant/Applicant's Notice of Motion dated 7th July 2026 is hereby dismissed, the suit shall proceed to hearing and determination as previously scheduled without further unwarranted interruptions, and the costs are awarded to the Plaintiffs/Respondents. 29.It is so ordered. Dated, signed and delivered virtually at Homa Bay this 29th day of September, 2026. JUSTICE J.W WANYONYI – JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY In the presence of; 1. Otieno Obiero for the Applicant-Present 2. Benard Said Michael -Present. 3. Mbarukh -Present 4. 2nd and 3rd Plaintiff represented by Benard. 5. Ms. Awino, Court Assistant 15 | P a g e HOMA BAY ELC LC E023 OF 2025, RULING

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