Moses Wanjala Lukoye v Hon Fernandes Barasa, County Governor, Kakamega County Government & 1 other

of substantive justice, the court ordered that the Petition be transferred to the High Court for hearing and determination. 3. Aggrieved by the order of transfer, the respondents lodged Kisumu Court of Appeal No E031 OF 2024, challenging the jurisdiction of the Employment and Labour Relations Court to transfer the petition after finding that it lacked jurisdiction. 4. Following the transfer, the petition was placed before this court for directions and was first mentioned on 24th April, 2025.On that date the respondents made an oral application for stay of proceedings pending appeal, which was opposed by the petitioner. 5. The courts directed that a formal application be filed, consequently the Respondents’ filed a Notice of Motion dated 23rd May 2025 seeking a stay of proceedings pending the hearing and determination of Kisumu Court of Appeal Civil Appeal No. E031 of 2024. 6. The application is supported by the Affidavit of Vivianne Mmbaka sworn on 23rd May 2025. The Petitioner opposed the application by a Replying Affidavit sworn on 5th June 2025 and written submissions. Respondent’s submissions. 7. The respondents submit that they have lodged an appeal challenging the jurisdiction of the Employment and Labour Relations Court to transfer the petition to this court after finding that it lacked jurisdiction. 8. They argue that the appeal raises an arguable issue, namely whether a court that lacks jurisdiction can transfer a matter, and contend that once jurisdiction is found lacking, the court becomes functus officio. 9. It is further submitted that the application was filed without undue delay and that allowing proceedings to continue would render the pending appeal nugatory, result in wastage of judicial time, and expose the parties to the risk of contradictory decisions. 10. The respondents contend that no prejudice will be suffered by the petitioner if proceedings are stayed, as the stay would merely pause the matter pending determination of the appeal. 11. The Court has considered the pleadings, affidavits, submissions and the authorities cited by the parties. Petitioner’s submissions 12. The petitioner opposes the application and submits that the respondents have failed to diligently prosecute the appeal since its filing in February 2024. 13. It is contended that the application is a delaying tactic intended to deny the Petitioner access to justice and prolong the occupation of a public office whose appointment is impugned. 14. The petitioner further submits that the transfer of the petition was lawful and consistent with binding court of appeal authority permitting transfers between courts of equal status in the interest of substantive justice. 15. The petitioner further submits that the respondents have failed to demonstrate any prejudice that cannot be remedied should the appeal succeed, while continued delay prejudices public interest and undermines constitutional accountability. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4474/eng@2026-01-28 2

page 2 of 5

Issue For Determination 16. The sole issue for determination is whether the Respondents have met the threshold for grant of an order for stay of proceedings pending appeal. Analysis And Determination 17. The power to grant stay of proceedings pending appeal is discretionary and is exercised in accordance with Order 42 Rule 6(1) of the Civil Procedure Rules, 2010. 18. Stay of proceedings is a drastic remedy and should only be granted in exceptional circumstances. The guiding consideration is whether granting the stay serves the interests of justice as illustrated in Global Tours & Travels Ltd; Nairobi HC Winding Up Cause No. 43 of 2000). 19. The applicable criteria were restated in Fidelity Shield Insurance Co. Ltd v Musoni Microfinance Limited [2025] eKLR, namely: a. Existence of an arguable appeal; b. Absence of unreasonable delay; and c. Demonstration of sufficient cause. Arguable appeal 8. It is common ground that the Respondents have lodged Kisumu Court of Appeal Civil Appeal No. E031 of 2024, challenging the jurisdiction of the Employment and Labour Relations Court to transfer the Petition to this Court. 9. While jurisdiction is a weighty issue, the existence of an arguable appeal does not automatically warrant stay of proceedings. This position is settled Kenya Power & Lighting Co. Ltd v Esther Wanjiru Wokabi [2014] eKLR. 10. Further, the Court of Appeal in Daniel N. Mugendi v Kenyatta University & 3 Others [2013] eKLR sanctioned the transfer of matters between courts of equal status in the interest of substantive justice. 11. Accordingly, although the appeal raises a legal issue, it does not, of itself, justify halting proceedings in this Court. Delay and diligence 12. The judgment appealed from was delivered on 11th December 2023, and the Record of Appeal was served on 9th February 2024. 13. As at the hearing of the present application, no evidence was placed before this Court to show that the appeal has been fixed for hearing or actively prosecuted. 14. A party seeking discretionary relief must demonstrate diligence. Inordinate and unexplained delay disentitles a party to equitable relief as illustrated in Ivita v Kyumbu [1984] KLR 441. 15. The Court finds that the Respondents have not demonstrated reasonable diligence in prosecuting the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4474/eng@2026-01-28 3

page 3 of 5

Sufficient cause and prejudice 16. The Respondents contend that proceeding with the Petition may render the appeal nugatory and lead to a waste of judicial time. This contention, without more, does not constitute sufficient cause. Judicial time alone is not prejudice warranting stay. In the case of David Morton Silverstein v Atsango Chesoni [2002] eKLR, the high court emphasized that the possibility of expending judicial time on proceedings that may later be affected by an appeal is not, by itself, a sufficient ground for granting a stay of proceedings….Judicial time, though precious, cannot outweigh a litigant’s right to have their case heard and determined without undue delay. 17. No evidence has been shown that any prejudice suffered by the Respondents cannot be remedied should the appeal succeed. 18. Conversely, the Petition raises issues concerning public employment and compliance with constitutional and statutory requirements. Delay in determining such matters risks entrenching an alleged illegality. 19. Constitutional litigation involving public offices should be determined expeditiously and should not be stalled by interlocutory applications .This was also reinforced by the court of Appeal in the case of the Judicial Service Commission v Gladys Boss Shollei & Another [2014] eKLR where it stated that disputes over the appointment, discipline,or removal of public officers involve constitutional rights and must be resolved with strict adherence to due process, fairness and constitutional mandates. 20. Granting a stay in the present circumstances would be inconsistent with Article 159(2)(b) of the Constitution and the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, as it would pause the hearing of the petition and the high court would not exercise its original jurisdiction to determine the constitutional issues in a timely manner. Conclusion 22. The Respondents have failed to satisfy the cumulative requirements for the grant of stay of proceedings pending appeal. 23. The Notice of Motion dated 23rd May 2025 is hereby dismissed. 24. Costs of the application shall be borne by the Respondents. 25. The Petition shall proceed for hearing without further delay. 26. It is so ordered. 27. Right of Appeal 30 days . 28. Mention 4.6.2026 to take directions on the Petition. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 28TH DAY OF JANUARY,2026. S.N MBUNGI JUDGE. In the presence of:CA: Ang’onga/ Nekesa Ms. Shisia holding brief for Patrick Lutta senior counsel for the Respondents, present online. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4474/eng@2026-01-28 4

page 4 of 5

Parties absent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4474/eng@2026-01-28 5

page 5 of 5