(a) Whether the Application is properly before me
14.Although the parties did not raise the issue, it is worth considering whether the Application is properly before me because such an issue is a matter of law. The Application seeks to stay proceedings in Kitale CMC Land Case No. 82 of 2020 pending the hearing and determination of the appeal preferred from a Ruling made therein on 17/10/2020. Admittedly, by the Appellant/Applicant, apart from Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, the Application is brought under Order 42 Rule 6 of the Civil Procedure Rules.
15.Order 42 Rule 6 of the Civil Procedure Rules 2010 provides generally for the grant of stay (of execution or proceedings) in case of an appeal being preferred. Of relevance to the instant Application is Sub-Rule 1 of the Order. It provides that,
16.A plain grammatical or textual reading of this terminology reading of the text above, particularly, the underlined phrase is to the effect that a party is not permitted to skip the must important point as the first point of call: the respective trial magistrate or judge against whose order or judgment an appeal is preferred. After he or she has moved the Court and his Application is granted or not, depending on how he views the decision, then he/she will file another application in the Court appealed to. It is upon this step having been taken that the application for stay of proceedings in the trial can be considered by the appellate Court. Absent of this step, the application filed for stay of execution or proceedings directly to the appealed to is improper.
17.In the instant case, both the Applicant and the Respondent deponed that after the decision of 17/10/2022 the Applicant filed the instant appeal. But from the record the appeal was filed on 28/10/2022. It is not shown anywhere by the depositions of the parties that the Applicant sought stay of the proceedings in the trial Court and it was either granted on conditions or refused. This Court therefore concludes that a stay similar to the one sought herein was not sought in the lower Court. Without that, it is clear to me that the Applicant did not take an important step as required by the Rules. That being the case, then the Application before me is improperly before me.
18.I would be clear to state here that Laws and Rules of procedure were not enacted and/ or made in vain. They are made for a purpose and the same should be served. Even where their application would occasion what may seem to be an injustice by being applied, the procedure or step they lay down ought to be followed otherwise the situation of failure to apply them would lead to a system slowly grinding to a halt, anarchy, chaos, impunity and absence of the Rule of Law.
19.The situation described in the preceding sentence is a manifestation of a state or country which is brutish and barbaric: one that fits an uncivilized nation. Kenya has gone way far ahead of that. We are in a place where the common phrase that used to fly around that “this person is illiterate and primitive” is long forgotten and should never arise. In any event, one of the national values and principles that this Country prides in is, under Article 10(2)(a) of the Constitution of 2010, the rule of law.
20.I am aware that time without number, courts have stated earlier that rules are supposed to be hand maidens of justice and not masters hence they should serve the ends of justice (see HIND CONSTRUCTION CO. LTD v WILSON ONGESO  eKLR; SARAH HERSI VERSUS KENYA COMMERCIAL BANK CIVIL APPEAL NO. NAI 165/1999; Shashikant C. Patel v Oriental Commercial Bank  eKLR; Inland Beach Enterprises Ltd v Sammy Chege & 15 Others  eKLR, etc). And it has been restated that Article 159(2)(d) of the Constitution of 2010 mandates Courts not to determine matters based on technicalities but substantive justice, so much so that the prejudice to be occasioned on the innocent and offending parties by reason of the Court taking a drastic step such as striking out pleading because of failure to follow procedure should be weighed keenly.
21.This Court is prepared to give substantive justice herein. Substantive justice must be given within the confines of the observance of the Rule of Law and be balanced to all parties. As the Court of Appeal stated in Abdirahman Abdi v Safi Petroleum Products Ltd & 6 others  eKLR,
22.However, as I weigh the effect of failure to move the trial Court first about the issue before me and the step taken by the Applicant to this Court “directly from the showroom”, that is to say, from the point of the order sought to be stayed, I am inclined to find, and I hereby do, that greater injustice is made to the innocent party if the appellate Court were to treat the skipping of the request for halting the proceedings in the trial Court so as to appeal from its decision as a minor infraction which can clothe the appellate Court with jurisdiction to hear the application (as one of first instance). For instance, had the Applicant herein, immediately after filing this appeal, sought the stay of proceedings in the lower Court before moving this Court, it would have put the Court and the Respondent on notice that the steps being taken in the trial Court would one day be a subject of being appealed against.
23.Halting of proceedings, without reasonable excuse in the era of expeditious determination of matters is itself an injustice. Worse, is when both the other party and the trial Court proceed on the premise that the matter has no obstacle hence, for instance, cross-examine witness and prepare submissions, and prepare a judgment respectively, only to be ambushed with an order of stay of proceedings from an appellate Court. Not only is that a waste of the precious judicial time but an ambush that manifests malice, spite and scorn.
24.Thus, as the Court of Appeal stated in Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others  eKLR:
25.Similarly, the requirement, under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010, to first approach the trial Court for an order of stay of proceedings is not a mere technicality of procedure. It is a matter of substantive justice, intended for good order and purpose, and would save a lot of judicial time and agony on the part of the parties. To lower or ‘elevate’ it to a technicality which Article 159(2)(d) of the Constitution of Kenya, 2010, would require that its infraction be glossed over would cause injustice to the innocent party.
(b) Whether the Application is merited
26.Having said as much above, and although I would have moved to strike out the application after that, I now, for good reason, consider the merits of the Application. The parties went into great lengths to discuss the merits of the appeal herein. While that was plausible, it was not the main issue before in this application. All that the Applicant was required to demonstrate was that he has an arguable appeal (not that the appeal raises triable issues - that to me was a strange argument because an appeal is not tried, it is argued: suits, claims and petitions and the kind are the ones tried before courts where they are brought). Again, the Applicant argued that he would suffer substantial loss. While it may be taken that he wanted to convince the Court about the damages that he may suffer which cannot be compensated by way of damages, that is not akin to substantial loss which applies to issues to consider in applications on injunctions. Learned counsel would do well to do more on his homework on the study of law so that they would help to guide the Courts to the proper directions and decisions. The Applicant also needed to show that the appeal would be rendered nugatory of the order sought was not granted.
27.In my view, there is appeal against the order issued on 17/10/2022. As to whether it is arguable, I consider two issues: first, that the order impugned is a discretionary one. It is arguable whether or not it was exercised judiciously. Second, the Respondent raised the issue of leave to file the appeal not having been sought. That is arguable.
28.Regarding whether the appeal herein shall be rendered nugatory or not, I consider the circumstances prior to and after the order of 17/10/2022 as made by the trial Court, and they play out as a short movie. From the depositions of the parties, for reason of age and illness of the respondent that were stated by learned counsel in the Replying Affidavit, the trial Court fast-tracked the suit whose order is the subject of the instant appeal. On 12/09/2022 the Plaintiff/Respondent applied for adjournment and given the 26/09/2022 to proceeded with his case. He did so on that date and closed his case. Defence hearing fixed for 17/10/2022. On the latter date the Applicant requested for the matter to procced at 10.30 am. After that time, instead of him adducing evidence made an application dated the same date, seeking leave to amend the Defence.
29.Upon the same being opposed, it was struck out and the trial Court ordered the matter to proceed. Learned counsel for the Applicant prayed for ten (10) minutes to prepare the Applicant and witnesses to testify. It appears he was sacked within the ten minutes and his Advocate instructed another firm of lawyers who filed and served the Respondent with a Notice of Change of Advocates. Cognizant of the right to counsel of any party, the Court adjourned the suit to 24/10/2022. On 24/10/2022, the Applicant seems to have sacked the “new” advocate and now acted in person. He proceeded with his Defence hearing that date and 31/10/2022. He closed his case and judgment was fixed for on 28/11/2022.
30.A new light of dawn must have come upon him on 28/10/2022 and it caused him to file the instant Appeal against the order of 17/10/2022. It is clear that on and after the 17/10/2022 the Applicant did not move the trial Court for stay of proceedings. What is more baffling than that is that even after filing the appeal three days prior to the 31/10/2022 when he adduced his further evidence, he did not seek the order of stay of the proceedings either immediately or on the 31/10/2022. He chose to remain silent about it and instead, was busy drafting the instant detailed and long application because from what appears to me, the receipt of payment FCU-0019833 for Kshs. 2250/= was issued at 13:26:07 hours.
31.Given that the judgment in the lower Court is due on 28/11/2022 yet there is an appeal preferred from the orders the trial magistrate issued on 17/10/2022, the question that I must answer is, will the appeal be rendered nugatory if the order of stay of proceedings sought herein is not granted? The Court of Appeal, in Reliance Bank Limited vs Norlake Investments Limited  1 E.A. 227 explained that the circumstances of each case must be considered in arriving at a decision as to whether or not an appeal may be rendered nugatory. It stated as follows:
32.Additionally, in the case of Kenya Airports Authority vs. Mitu-Bell Welfare Society & Another (2014) eKLR, that:
33.Also, in Tabro Transporters Ltd. vs. Absalom Dova Lumbasi  eKLR, the Court stated thus:
34.In Katangi Developers Limited v Prafula Enterprises Limited & another  eKLR, the same Court stated as follows:(16)In short, the failure to grant an order of stay will not render the applicant’s intended appeal nugatory.”
35.I must agree in totality with the reasoning of their Ladyships and Lordship of the Court of Appeal that the fact that the trial Court proceedings will go to the full conclusion of their life does not of itself render the appeal nugatory. Costs are a sufficient remedy should the said proceedings be found unnecessary in the event that the appeal succeeds. Even as noted in the preceding authorities to the last Court of Appeal one, an Applicant in an application of this nature should demonstrate to the Court the threatened harm or loss which cannot be remedied by payment of costs shall have passed in the intervening period unless stay of proceedings is not granted. I see no harm in a judgment being prepared and delivered in the lower Court case. Not every appeal should call for an automatic stay of proceedings (or even execution). There must be special circumstances to call for that. They did not manifest themselves in the instant case.
36.However, I must hasten to state that even though the reasoning of their Lordships could have been different from mine, the circumstances of the instant case would have nevertheless led me to make a finding that the appeal would not be rendered nugatory because, by the conduct of the party/ Applicant he already made appeal rendered nugatory, to use the term loosely. I say so because, by his own conduct, the Applicant ‘acquiesced’ or ‘agreed’ to the proceedings going on. He did not in any way, at the earliest instance, that is to say, on 17/10/2022 or so soon thereafter apply to stay the proceedings. Instead, he proceeded with the hearing on 24/10/2022 and 31/10/2022. He did not ‘protest’. He cannot be heard to cry “wolf” afterwards when he has been dining and wining in one sheep pen with the same wolf. The conduct of the Applicant is akin to and can be best exemplified by, although not the same and should not be equated to, such conduct as promissory estoppel or equitable forbearance, and/or affirmation as known in the law of contract. If a party by his conduct express or otherwise leads to another (and the Court) to believe that the state of things are as they appears to be, as in the instance case, that he has no ‘protest’ to the proceedings going on, and both the Court and the other parties act believing that to be the case, he cannot be heard to revile that position later.
37.Lastly, but not least, the grounds of appeal stated in Annexture RW4 and the prayers sought in the said Memorandum of Appeal are, in my view, ‘static’ in the sense that they only point to, if successful, the varying or setting aside of the order of striking out issued on 17/10/2022 and nothing more. This Court wonders aloud as to what would become of the proceedings subsequent to the order, should the appeal succeed. This Court wonders so because, it is clear that the Defendant in the lower Court matter/Applicant herein has so far testified and closed his case. In the Appeal there is no prayer for setting aside of the proceedings subsequent to that. Additionally, there was prayer, in the Application dated 17/10/2022 which was struck out, to the effect that the Defendant be granted leave to adduce more and new evidence which was not within his reach after due exercise of diligence before the hearing or close of pleadings. It therefore means that if the appeal is successful, once the prayers in the application are granted, the Applicant/Appellant will embark on making further applications about leave to set aside proceedings, file further or additional documents and or witness statements, and so on. Such is an example of the many the delaying tactics that litigants employ to ensure that matters prolong in courts hence causing backlog. This Court shall not bend towards engendering such practice. Whilst this Court is not determining the merits of the appeal herein, it is clear to me that the appeal will therefore not be rendered nugatory since the proceedings subsequent to the impugned order would still be intact after the appeal succeeds, if it does, hence calling for further applications to alter the steps subsequent to the order of 17/10/2022. Thus, the application before me for a prayer for staying the proceedings is nothing but a mere academic exercise.
38.Before I conclude, I would, in passing, state nostalgically that legal practice in Kenya seems to be evolving by the day, but not necessarily to the better professional stature. At times learned counsel play into the gallery of the unprofessional by accepting to be used to play tricks or have sharp practice. It is sad! In this matter, it appears to me that by his act of applying for adjournment, ‘sacking’ his learned counsel at the hearing and appointing another and ‘sacking’ him on the subsequent hearing and proceeding, only for the former learned counsel to be re-instructed on appeal, the Applicant was using instructions to and learned counsel as a gimmick to hoodwink the trial Court into granting him adjournments. It is a clear case of intention to delay the matter in the trial Court and the trail magistrate should not “buy into it”. Also, it is unprofessional for learned counsel to be allow themselves or their law firms to be used by parties to play such tricks.