Maina & 3 others v Shoprite Checkers Kenya Limited (Civil Suit E180 of 2022) [2026] KEHC 2700 (KLR) (Civ) (22 January 2026) (Ruling) Neutral citation: [2026] KEHC 2700 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CIVIL CIVIL SUIT E180 OF 2022 SIFUNA NIXON, J JANUARY 22, 2026 BETWEEN PATRICK ALOUIS MACHARIA MAINA ........................................ 1ST PLAINTIFF ANN MALINDA TOMA .................................................................... 2ND PLAINTIFF SMM (MONOR SUING THROUGH THE 1ST PLAINTIFF HER FATHER AND NEXT FRIEND) ................................................................................... 3RD PLAINTIFF JMM (MINOR SUING THROUGH THE 1ST PLAINTIFF HER FATHER AND NEXT FRIEND) ................................................................................... 4TH PLAINTIFF AND SHOPRITE CHECKERS KENYA LIMITED ...................................... DEFENDANT RULING 1. This ruling is on the Plaintiffs’ Application dated 26th October 2023. By it, the Plaintiffs have urged this Court to stay the proceedings, in this suit, until the Court of Appeal determines the appeals arising from Nairobi High Court Constitutional Petition No. E004 of 2021. A Constitutional Petition in which these Plaintiffs were the Petitioners. 2. The Application, which has cited Articles 21 (1) and 159(2) of the Kenya Constitution, has been vehemently opposed by the Defendant through the Replying Affidavit of Andrew Wagner, sworn on 11th December 2023. 3. The Defendant in support of this Application argued that although the said Appeals did not arise from this suit, they are related to it and their outcome will have a bearing on this suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2700/eng@2026-01-22 1
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4. Hence that there is need to stay the proceedings in this suit, pending the hearing and final determination of those appeals by the Court of Appeal. 5. The Plaintiffs have through Patrick Alouis Macharia Maina the 1st Plaintiff in the submissions at the hearing of this Application, argued that the said Replying Affidavit is defective for failing to comply with the legal requirements of an Affidavit and for containing inadmissible hearsay and falsehoods. 6. Hence that there is no valid Replying Affidavit and that therefore the Application is unopposed and should be allowed. And that the said Affidavit should be struck out. Determination 7. I have perused the said Replying Affidavit and not found any defects to warrant such a drastic action. Order 19 Rule 7 of the Civil Procedure Rules, allows courts to receive any affidavit sworn for purposes of being used in any suit, notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality. 8. Under Order 42 Rule 6 (2) of the Civil Procedure Rules, a party seeking a stay pending appeal, seeks it in the suit the subject of the Appeal, not in another suit. The Application, whether for stay of execution or stay of proceedings, should have been sought in the Constitutional Petitions themselves. 9. Even though there is a relationship between the facts in those Constitutional Petitions and this suit, this suit is different from those petitions, and the proceedings in those petitions and the proceedings in this suit are not the same. 10. In the end, I find neither merit nor legal justification in this Application, hence hereby dismiss it with costs. DATED AND DELIVERED AT NAIROBI ON THIS 22ND DAY OF JANUARY 2026. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2700/eng@2026-01-22 2
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