Greatrift Express Shuttle Services Limited v Pm (a Minor Suing Through The Mother and Next Friend Ea) & 1 other

the Honorable Senior Resident Magistrate, D. Sitati, delivered a ruling and issued directions in Eldoret Civil Suit No. E657 OF 2022 EAO v Great Rift Express Shuttle Services Limited & Family Bank, which aggrieved the Appellant/Applicant, that being dissatisfied with the said Ruling and directions, the Appellant/Applicant has filed a Memorandum of Appeal before this Honorable Court raising weighty grounds of law and fact, particularly touching on the admission of testimony and medical documents from a purported expert witness whose credentials and professional standing remain unverified and that during the further hearing of the Plaintiff's case on 13/08/2025, the Plaintiff's counsel Presented a purported doctor who lacked any identification, professional credentials, or documentation confirming that he was attached to or employed by Chepkigen Health Facility, the institution from which the disputed treatment notes allegedly emanated. 3. He contended that despite these glaring deficiencies, the said witness was nonetheless permitted to testify and proceeded to produce treatment notes from the alleged facility, to the great prejudice of the Appellant/Applicant, that the Appellant/Applicant duly raised objections to the testimony and documents, but the trial court overruled the same and directed the matter to proceed to Defence hearing. 4. He stated that unless this Honorable Court intervenes and grants a stay of further proceedings, the lower court will proceed to the Defence hearing on the basis of the contested evidence, thereby undermining the fairness and integrity of the trial and that the Appellant/Applicant stands to suffer grave prejudice and irreparable injustice if compelled to proceed with the Defence hearing while the appeal, which directly challenges the admissibility of the impugned testimony and documents, is still pending determination. He maintained that unless stay is granted, the appeal risks being rendered nugatory, as the trial may be concluded on the basis of the very evidence whose validity is under challenge in this Court. 5. He further deposed that it is in the interest of justice that this Honorable Court issues an order staying further proceedings in Eldoret Civil Suit No. E657 OF 2022 EAO v Great Rift Express Shuttle Services Limited & Family Bank pending the hearing and determination of this application and the appeal, that the Respondent will suffer no prejudice if the orders sought are granted, whereas the Appellant/ Applicant stands to suffer substantial injustice should the stay not be issued, that the Appellant/ Applicant Appeal has high chances of success, that thus Application is made in good faith and will not occasion any prejudice to the Respondents and that this application will not occasion any prejudice to the Respondent that cannot in any event be compensated with the payment of costs. Replying Affidavit 6. The Application is opposed by the Respondent vide the Replying Affidavit sworn by Counsel, Morris Indakwa Buluma, on 25/09/2025. He deposed that the instant application is application is frivolous, vexatious and an abuse of the court process and that the applicant does not have an arguable appeal as the case is still active in the Chief Magistrate's Court. He maintained that if the Applicant is aggrieved by the Court's refusal to have a witness stood down the remedy does not lie in a declaration that the proceedings thereat were null and void. 7. He further deposed that the issues raised are issues of fact and the Applicant still has an opportunity to controvert the same by use of facts, that Counsel for the Applicant is attempting to raise issues of fact from the bar, that the issues raised in the Memorandum of Appeal herein are issues still pending for determination before the trial court and the said memorandum resembles the expected submissions by the Applicant before the trial court and that his firm has never been served with any appeal herein and we were genuinely surprised to be served with the instant application on 22/9/2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3702/eng@2026-03-19 2

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8. He urged that the applicant will not be prejudiced in any way if the case in the lower court proceeds because the said Applicant is duly represented, that the question of the evidential value of the documents in issue alluded to by the Appellant has not been determined and can therefore not give rise to an appeal and that the Applicant herein has not offered any security for costs to entitle it to the prayers sought. Submissions 9. Parties agreed to canvass the Application vide written submissions. The Applicant filed Submissions dated 5/10/2025 whereas the Respondent filed submissions dated 10/11/2025. Applicant’s Submissions 10. In regard to stay of proceedings, Counsel for the Applicant submitted that this Honorable Court in exercising its discretion on whether to grant application for stay of proceedings ought to consider special circumstances and the unique fundamental principles/requirements as laid out under Order 42 of the Civil Procedure Rules. Counsel relied on the case of Ezekiel Mule Musembi v H. Young & Company (E.A) Limited [2019] KEHC 11434 (KLR) and also the case of Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000. 11. On issue of whether the application has been filed timeously, Counsel submitted that this application has been brought expeditiously and without undue delay. Counsel added that the initial ruling was rendered on 13/08/2025, the Memorandum of Appeal was lodged on 23/08/2025 and the Application herein dated 26/08/2025 was filed in court on 13/09/2025. According to Counsel, the period within which the ruling was delivered and when the application was lodged is not inordinate as the instant application was filed within the timelines following the delivery of the ruling. The same was therefore filed timely and expeditiously. 12. On whether the appeal is arguable, Counsel submitted that whereas the Court in such an application may be entitled to look at the intended appeal and see whether or not the intended appeal is not frivolous so as to satisfy itself that it is not being asked to suspend the proceedings so as to frustrate the hearing and delay the expeditious disposal of the matter, care must, however, be taken to ensure that the Court does not purport to preside over the intended appeal so as to avoid usurping the powers of the appellate Court. He relied on the case of Niazons (Kenya) Ltd. vs. China Road & Bridge Corporation (Kenya) Ltd. Nairobi (Milimani) HCCC No. 126 of 1999. 13. Counsel further submitted that the power of this Honorable Court to grant a stay of proceedings is anchored under: Section 3A of the Civil Procedure Act, Cap 21, which preserves the inherent power of the court to make such orders as may be necessary for the ends of justice and Order 42 Rule 6(1) of the Civil Procedure Rules, 2010, which empowers the court to stay execution or proceedings pending appeal. Counsel reiterated that the Court's discretion to grant such stay must be exercised judiciously and in accordance with established principles. He relied on the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR) and also the case of Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000. 14. Counsel maintained that the Appellant/Applicant's appeal raises serious questions of law and fact concerning the admissibility of expert evidence under Sections 48 and 50 of the Evidence Act, Cap 80. The trial court allowed the testimony of a purported medical expert without any proof of professional qualifications registration under the Medical Practitioners and Dentists Act (Cap 253). With regard to reliance on expert opinion, Counsel relied on the case of Shah and Another vs Shah and Others (2003) 1 EA 290. Counsel thus submitted that the appeal therefore discloses a prima facie arguable case, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3702/eng@2026-03-19 3

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deserving consideration before the lower court proceeds to hear the defence on the basis of contested evidence and he contended that should the lower court proceed with the defence hearing and possibly deliver judgment based on the impugned medical testimony, the substratum of the appeal will be lost. Counsel argued that this would render the appeal nugatory, he relied on the case of Patel v Transworld Safaris Ltd [2004] eKLR. Counsel urged that the Appellant stands to suffer irreparable prejudice should the proceedings continue, as the fairness and integrity of the trial would be compromised by reliance on improperly admitted evidence and that on the other hand, the Respondents will suffer no prejudice if proceedings are stayed temporarily pending the expeditious determination of the appeal. He relied on the caseof Port Reitz Maternity -vs- James Karanja Kabia Civil Appeal No. 63 of 1997. 15. In light of the foregoing, Counsel thus urged that this is a fit and proper case for the exercise of this Honorable Court's discretion in favor of granting a stay of proceedings pending appeal. Counsel reiterated that the appeal raises weighty and arguable issues of law regarding the admissibility of expert testimony, and denial of stay would render the appeal nugatory and cause substantial injustice. Respondent’s Submissions 16. I take note that whereas, the Applicant’s motion sought for orders of stay of proceedings, the Respondent’s Counsel chose to submit on stay of execution rather than stay of proceedings. As such, I find no reason to reproduce the said submissions herein. Determination 17. I have considered the Application, the Replying affidavit and the written Submissions filed by both parties as well as the authorities cited and I find the sole issue for determination to be whether the Application for stay of proceedings pending the hearing and determination of the appeal is merited 18. Order 42 rule 6(1) of the Civil Procedure Rules provides that : “ (1) 19. No appeal or second appeal shall operate as a stay of execution or proceeding 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, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. When determining an Application seeking stay of proceedings, the Court is required to exercise its discretion but after due consideration of the merits of the case and the likely effect on the ends of justice. Needless to state, exercise of discretion must be grounded on judicious principles. On this issue, Hon. Justice Ringera J in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 (Supra) held as follows: “ 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 so, 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3702/eng@2026-03-19 4

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granting the order. And in considering those matters, it should bear in mind such factors as 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.” 20. The requirement for the Court to judiciously exercise its discretion when considering an Application to stay proceedings was reiterated by Hon. F. Gikonyo J in the case of Christopher Ndolo Mutuku & Another vs CFC Stanbic Bank Limited (2015) eKLR in which he stated as follows: “ ….. what matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…” 21. Similarly, Halsbury’s Law of England, 4th Edition, Vol. 37 page 330 and 332 gives guidelines on the threshold 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 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. It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 22. Further, in the case of Kenya Wildlife Services v Jane Mutembi (2019) eKLR, again, Hon. Justice F. Gikonyo 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.” 23. The principles for stay of proceedings pending appeal were set out in the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019] eKLR as follows: a. First, there must be an appeal pending before the higher Court; b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3702/eng@2026-03-19 5

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Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly; 24. 25. c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted; e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f. sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. In line with the foregoing guidelines, the general consensus is that in an Application for grant of stay of proceedings, the matters that the Court must satisfy itself on are the following: a. That the applicant has established a prima facie arguable case; b. That the application was filed expeditiously; and c. That the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought. In the case of Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR), the Court of Appeal stated that:“ On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised”. 26. Additionally, the Court of Appeal in the case of University of Nairobi v Ricatti Business of East Africa [2020] KECA 463 (KLR) held that: “ An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous”. 27. Having addressed my mind to the reasons for which a stay of proceedings in Eldoret Civil Suit No. E657 of 2022 EAO V Greatrift Shuttle Services Limited v Edwin Shivakale Skem & Family Bank is sought, and relying upon and guided by the Statute and Case law herein cited, it is my very well considered opinion that the case does not fit into the category of the envisaged exceptional cases which would warrant an order of stay of proceedings. I am of this considered view because the Applicant has not demonstrated that the main suit itself, that is before the trial court, is in its entirety frivolous, vexatious, harassing and/or is manifestly groundless and in which there is clearly no cause of action in law or in equity. 28. The Application before this court is solely based on the ground that a Ruling was delivered at an interlocutory stage in the course of the proceedings before the lower court which Ruling the Applicant does not agree for the reasons herein summarized and has therefore lodged an appeal. It should be noted however that the main suit is still alive and is yet to be concluded on its merits, and that once the trial court renders itself on the entirety of the suit, the Applicant has the opportunity to exercise his undoubted right of appeal, which right exists, and remains reserved and unextinguished in his favor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3702/eng@2026-03-19 6

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This is in light of the fact that that trial court is the first court in the tier of the courts that have both the Constitutional and Statutory mandate to adjudicate over the Appellant’s cause. 29. It has been emphasized in the precedents herein cited that stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation 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. I subscribe entirely with this position and in this regard, I find that the Application by the Applicant for stay of execution as well as stay of proceedings lack merit and the same is dismissed in its entirety with costs to the Respondent. The interim orders herein issued are now hereby vacated. READ DATED AND SIGNED AT ELDORET ON 19TH MARCH 2026 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3702/eng@2026-03-19 7

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