Mio (a Minor Suing Through Mio As Next Friend and Guardian) v Dr Sunil Vinayak & 2 others

the grounds stated on the face of it and in the Supporting Affidavit sworn by the Applicants’ advocate, Victor Mungai. 3. The advocate has deposed, inter alia, that the court (Meoli, J.) previously granted a stay of proceedings in the present suit on 19.01.2024, pending hearing and determination of two (2) appeals filed at the Court of Appeal, namely Civil Appeal No. E162 of 2022 and Civil Appeal No. E163 of 2022 challenging the judgment and the ruling delivered in the Judicial Review Division on 22nd July, 2020 and 16th November, 2021 respectively in Judicial Review Misc. Application No. 29 of 2019 as consolidated with Judicial Review Misc. Application No. 63 of 2019. 4. The advocate has stated that the above order for stay was extended on 22.10.2024 on the condition that the 1st and 3rd Defendants/Applicants do file an affidavit demonstrating the steps taken in having the Court of Appeal matters listed for hearing; that the 1st and 3rd Defendants’/Applicants’ advocate did comply with the above condition by filing an Affidavit dated 30.04.2025 detailing the progress so far made in the respective pending appeals; that in making an order on 22.05.2025 lifting the order for stay of proceedings herein, this court was under the mistaken belief that the 1st and 3rd Defendants/ Applicants had not complied with the earlier directives requiring them to provide a progress report on the appeals, yet this was done as narrated above and that unless the order made on 22.05.2025 is reviewed and set aside, and the present suit is permitted to proceed, the pending appeals will be rendered nugatory thereby resulting in grave prejudice to the 1st and 3rd Defendants/Applicants. 5. The advocate has stated, further, that Plaintiff will not suffer any prejudice that cannot be compensated by an award of costs. The Replying Afidavit 6. The Application is opposed by the Plaintiff/Respondent through his replying affidavit sworn on 30.10.2025 in which he has deposed that the issues arising for determination in the respective appeals before the Court of Appeal are distinct and exclusive from those arising in the present suit and therefore the order for stay of the proceedings is unnecessarily sought and that the instant Application has not been brought in good faith and is intended to further delay the present suit which has been pending in court for over nine (9) years. 7. Millicent Adhiambo (the Interested Party) has sworn a replying affidavit on 15.10.2025 to oppose the Application. She has supported the averments by the Plaintiff/Respondent that the Application is a delaying tactic on the part of the 1st and 3rd Defendants/Applicants and that the appeals in question have no bearing to the present suit and that the stay of proceedings, if reinstated, would further curtail the progress of the present suit which has now extended over nine (9) years while the health condition of the Minor herein continues to deteriorate. 8. The 1st and 3rd Defendants’/Applicants’ advocate, Victor Mungai, filed a further affidavit sworn on 1.12.2025 in which he stated that on 16.07.2025 the Court of Appeal directed the parties to file written submissions in respect of the two (2) appeals in preparation for a case management directions scheduled for 28.07.2025 and that the 1st and 3rd Defendants/Applicants complied by preparing draft written submissions in the appeals and remain committed to diligently pursuing the appeals in order to facilitate the expeditious disposal of the present suit. Parties’ Submissions 9. Parties highlighted their written submissions. In support of the Application, the 1st and 3rd Defendants/ Applicants relied on Section 80 of the CPA and Order 45 of the CPR on the principles for review. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/977/eng@2026-01-27 2

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They placed emphasis on ‘error apparent on the face of the record’ by arguing that in declining to grant an order for stay of proceedings through its ruling of 26.05.2025, this court did not consider the 1st and 3rd Defendants’/Applicants’ affidavit of service dated 30.04.2025, which was already on the court record, showing compliance with previous directions issued by the court. 10. They submitted that they met the threshold of demonstrating that there was a self-evident error, as elaborated in the case of Nyamogo and Nyamogo v Kogo [2001] EA 174. 11. The 1st and 3rd Defendants/Applicants also relied on the principle of ‘sufficient reason’ to argue that the order for review sought is necessary in ensuring a fair outcome, adding that the outcome in the two (2) appeals before the Court of Appeal will impact the present suit and that unless the orders sought in this instance are granted, they stand to be seriously prejudiced especially if their appeals are successful. 12. In opposition to the Application, the Plaintiff/Respondent faulted the 1st and 3rd Defendants/ Applicants for failing to bring their application under the applicable legal provisions on review. 13. They submitted that the appeals are unrelated to the cause of action and would therefore not impact the outcome of the present suit. They relied on Kenya Power & Lighting Co. Ltd v Esther Wanjiru Wokabi [2014] eKLR where the Court of Appeal held that courts ought not to stay proceedings where the issues arising in the separate matter are not directly and substantially in issue before the trial court and maintained that the orders sought, if granted, would greatly prejudice the Minor and would further delay the suit. 14. Counsel for the Plaintiff/Respondent reiterated the contents of the written submissions and submitted that no sufficient reasons have been provided to warrant the order for review sought and that it has not been demonstrated that the issues in the appeals are substantially similar or related to those in the present suit. 15. On her part, the Interested Party supported the submissions by the Plaintiff/Respondent, that the outcome of the appeals will in no way affect the present suit since the former arise from Judicial Review proceedings, while the present suit relates to a civil tort of medical negligence. The Interested Party urged the court to consider the prejudice that will be visited upon the Minor, who has had to wait for over nine (9) years for the suit to be heard. 16. In a rejoinder, Mr. Kimani argued that no application should be defeated on a technicality and that no fatality would result from a party’s failure to cite the correct provisions of law. He maintained that the outcome of the appeals will directly affect the present suit; that the order for stay is yet to lapse, the same having been extended on two (2) occasions and that the circumstances of this case would necessitate the granting of the orders being sought. 17. Dr. Geoffrey Muiruri King'ang'a (the 2nd Defendant), was not opposed to the Application. Analysis and Determination 18. I have carefully considered the Application, the grounds supporting it, the Replying Affidavits and rival submissions. 19. The 1st and 3rd Defendants/Applicants have approached this court under Order 42, Rule 6 CPR which seeks stay of execution/proceedings pending an appeal, and Order 51, Rule 1 CPR which relates to the general procedure for filing applications. They have also relied on Sections 1A, 1B and 3A CPA. 20. It is my considered view, upon reading the provisions cited above, that other than the general provisions under Section 3A CPA and Order 51, Rule 1, the relevant provision in respect to review, is Order 45 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/977/eng@2026-01-27 3

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of the CPR and not Order 42. However, it is my view that citing the wrong provision does not render the application fatally defective. This court will proceed to determine the application on merit. 21. The principles governing review are set out under Section 80 CPA and Order 45 of the CPR as follows: Any person considering himself aggrieved— 22. (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. An applicant seeking review must demonstrate, to the satisfaction of the court, that there is: a. Discovery of new and important matter or evidence, or b. Some mistake or error apparent on the face of the record, or c. Any other sufficient reason. 23. The instant application rides on ‘error apparent on the face of the record’ and ‘sufficient reason.’ 24. An error apparent on the face of the record was defined by the Court of Appeal in Muyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243, as follows: “ In Nyamogo and Nyamogo v Kogo [2001] EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a longdrawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us” (emphasis added). 25. The issue is whether the ‘error apparent on the face of the record’, as claimed by the Applicants in this matter, is self-evident, one that does not need elaborate arguments to support it. 26. As can be discerned from their arguments, the 1st and 3rd Defendants’/Applicants have stated that in declining to grant a further stay of proceedings vide its ruling of 26.05.2025, this court did not consider that their advocate had previously filed an affidavit dated 30.04.2025 detailing the steps so far taken in prosecuting the appeal, thereby constituting an error/mistake apparent on the face of the record. A copy of the referenced affidavit has been annexed on pages 14 to 15 of the supporting affidavit to the Application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/977/eng@2026-01-27 4

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27. The record shows that upon an application by the 1st and 3rd Defendants/Applicants, this court, vide a ruling delivered on 19.01.2024, granted a limited order for a stay of proceedings, which order was to remain in force for a period of nine (9) months therefrom. On 22.10.2024, the above order was extended by consent of the parties, until 5.05.2025, on condition that counsel for the 1st and 3rd Defendants/Applicants do file progress reports by way of affidavits and annexures demonstrating progress or efforts made in pursuing the pending appeals. 28. On 22.05.2025, when the parties attended court, the record shows that counsel for the 1st and 3rd Defendants/Applicants did not make any reference to any filed material and further, no affidavit material was placed before the court or brought to the attention of the court. On that premise, this court declined to grant an order further staying the proceedings vide the ruling delivered on 26.05.2025. The onus was on the Applicants, through their counsel, to bring to the attention of the court any relevant material on record at the time, which was not done. 29. Upon my perusal of the record, I have noted that the 1st and 3rd Defendants’/Applicants’ advocate had filed the above-referenced affidavit sometime on or about 5.05.2025 through the CTS platform, though the existence of such affidavit was not brought to the attention of this court at any material time prior to that date. The said affidavit has annexed various correspondences between the advocates and the Deputy Registrar-Court of Appeal, regarding the appeals. 30. I have considered this matter. It is my considered view, and I am so persuaded, that 1st and 3rd Defendants/Applicants have demonstrated that there was an error or mistake apparent on the face of the record, which would warrant a review of the aforementioned ruling. 31. On the principle of ‘sufficient reason’ I have considered the 1st and 3rd Defendants’/Applicants’ assertions that the two (2) appeals are related to the subject matter of the present suit and that the outcome thereof will directly impact the suit. I have likewise considered the opposing position by the Plaintiff/Respondent and the Interested Party, that the subject matter of the appeals is distinct from that in the suit. 32. After due consideration of the material placed before the court and my perusal of the record, it is apparent that the two (2) appeals pending before the Court of Appeal arose from Judicial Review proceedings initiated by the 1st and 3rd Defendants/Applicants relating to a decision rendered by the Professional Conduct Committee (PCC) on 13.09.2018 arising from a complaint lodged by the Minor’s father, being the Plaintiff/Respondent herein. 33. Suffice it to say that, it is clear that the appeals and the present suit arose from the same subject matter. It is also clear, from the averments made by the 1st and 3rd Defendants’/Applicants’ counsel, that the appeals are in their final stages. I am therefore persuaded to exercise my discretion in favour of the applicants, though for a limited period of time due to the nature of this case. 34. Consequently, the order resulting from the ruling delivered on 26.05.2025 declining to grant a further stay of proceedings is hereby set aside and is substituted with an order reinstating a stay of proceedings in this suit for a limited period of sixty (60) days or until such time as Civil Appeal No. E162 of 2022 and Civil Appeal No. E163 of 2022 before the Court of Appeal are determined, whichever precedes the other. 35. I further direct that each party shall bear own costs for this application. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF JANUARY 2026. S. N. MUTUKU https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/977/eng@2026-01-27 5

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JUDGE In the presence of: 1. Mr. Musoma holding brief for Mr Kimani for the Applicants 2. Ms Kipketei holding brief for Mr. Sigoma for the Respondent 3. Mr. Ouma for the Interested Party 4. Ms Njari for the 2nd Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/977/eng@2026-01-27 6

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