Kikuyu Mih Project Limited v Foresight Interiors Limited

5. The Respondent, opposed the application on the grounds that the Applicant has been indolent and in contempt of multiple court directions, having failed to file documents and witness statements for over a year despite express orders issued on 9th October 2023. 6. The Respondent states that the Applicant filed a review application dated 6th December 2024 which was dismissed, and that it cannot therefore appeal against the same ruling in view of the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1. According to the Respondent, the Applicant’s conduct shows an abuse of the process of court, calculated to delay justice. He adds that the appeal raises no arguable issues and that the orders of 18th September 2025 are negative orders incapable of being stayed. 7. The Application was canvassed by way of written submissions which I have considered. I find that the following issues arise for my determination: a. Whether the Appellant’s appeal is competent given the earlier review proceedings; b. Whether the Appellant has established a prima facie arguable appeal; c. Whether the application was filed expeditiously; d. Whether sufficient cause exists and the interest of justice favours the grant of stay. Analysis and Determination (a) Competence of the Appeal 8. The Respondent’s case was that once the Applicant pursued and lost a review application, it cannot subsequently appeal the same ruling, citing Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Reference was made to the decision in HA vs. LB [2022] KEHC 2886, where Odunga J. (as he then was) held, inter alia, that: “ To allow parties who have unsuccessfully sought review to attack the very same decision on appeal would amount to opening multiple fronts of litigation and abuse of process. The law does not countenance pursuing both remedies concurrently or sequentially.” 9. The Appellant, on the other hand, submitted that the earlier review application and the present appeal are distinct in nature and relief, and that res judicata does not apply to this case. Reliance was placed on Richard Wefwafwa Songoi vs. Ben Munyifwa Songoi [2020] KECA 942 KLR where the applicability of the res judicata doctrine was discussed. 10. This court finds that while the Respondent’s position refiects the general rule on the res judicata doctrine, the Appellant’s grievance relates to the trial court’s treatment of its subsequent pleadings and the closure of its case, which raise distinct constitutional questions under Articles 25 and 50 of the Constitution. I find that the issue of the competence of the appeal is a matter that shall be determined substantively at the hearing of the appeal and not at this interlocutory stage. Prima Facie Arguable Appeal 11. The Appellant argued that it only needed to demonstrate one bona fide point deserving judicial consideration on appeal. Reference was made to the decision in Stanley Kangethe Kinyanjui vs. Tony Keter & 5 others [2013] KECA 378 where it was held that one ground of appeal can sufficiently fulfil this threshold. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19414/eng@2025-11-17 2

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12. The Appellant maintained that the appeal is arguable as it raises bona fide questions on the misapplication of the doctrine of res judicata and infringement of the Appellant’s right to a fair hearing under Article 50 of the Constitution.The Appellant also emphasized that the appeal raises constitutional and procedural questions regarding its right to adduce evidence and to be heard. Reference was made to the decision in Watu Credit vs. Geoffrey Makaya Aboki & Karen Chepkurui [2022] KEHC 1388 where it was held that infringement of the right to a fair hearing constitutes an arguable ground of appeal. 13. The Respondent, on the other hand, held the position that stay of proceedings is a grave and exceptional remedy which should not be granted lightly. 14. My finding is that the Applicant has demonstrated that it has an arguable appeal in view of the procedural and constitutional questions that it raises. Timeliness of the Application 15. I note that the ruling appealed from was delivered on 18th September 2025, and this motion filed approximately one month later on 22nd October 2025. Courts have previously held such delay to be reasonable (See Guardian Coach Ltd vs. Mwiti [2023] KEHC 26209 KLR). I find that the application was filed promptly. Sufficient Cause and Interest of Justice 16. The Appellant argued that unless stay is granted, the trial court will proceed to judgment based solely on the Respondent’s evidence thereby rendering the appeal nugatory. I note that indeed, during the mention of this application, the Appellant’s counsel indicated that the case before the trial court is listed for mention on 18th November 2025 for purposes of fixing a judgment date. 17. Conversely, the Respondent argued that the Appellant’s record, which was littered with numerous instances of non-compliance with court orders, militates against the granting of the equitable relief sought. Reliance was placed on the decision in Kenya Wildlife Service vs. James Mutembei [2019] KEHC 10478 KLR where the Court emphasized that stay of proceedings is a grave remedy that must not be used to delay justice. 18. My finding is that the right to a fair hearing under Article 50 of the Constitution outweighs the inconvenience occasioned to the Respondent by the delay. Balancing the parties’ competing interests, this court is persuaded that justice will be best served by preserving the appeal for full determination. Disposition 19. Having regard to the findings that I have made in this ruling, I find merit in the Notice of Motion dated 22nd October 2025. Accordingly, make the following final orders: a. Stay of proceedings in Milimani CMCC No. E716 of 2021 Foresight Interiors Limited vs. Kikuyu MIH Project Limited is hereby granted pending hearing and determination of the appeal. b. The Appellant shall file and serve the record of appeal within thirty (30) days. c. The appeal shall thereafter be listed for directions before the Deputy Registrar on priority basis on 8th January 2026. d. Costs of this application shall abide the outcome of the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19414/eng@2025-11-17 3

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20. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2025. HON. W. A. OKWANY JUDGE 17/11/2025 For Appellant ……………. For the Respondent ………… Court Assistant Ubah https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19414/eng@2025-11-17 4

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