[2023] KEHC 23427 (KLR)

4MB Mining Limited v Misnak International (UK) Limited & 2 others (Civil Case 22 of 2020) [2023] KEHC 23427 (KLR) (3 July 2023) (Ruling)

Neutral citation: [2023] KEHC 23427 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 22 of 2020

DKN Magare, J

July 3, 2023

Between

4MB Mining Limited

Plaintiff

and

Misnak International (Uk) Limited

1st Defendant

CJ ICM Group

2nd Defendant

Rohlig Projects Limited

3rd Defendant

Ruling

1. This is an application for stay of proceedings pending appeal to the Court of Appeal. The Applicant filed an application dated 21/1/2022, seeking the said orders on grounds that the court has no jurisdiction. Secondly, that they have filed a record of Appeal.

2. The application was opposed. The parties filed submissions and I fixed the matter for ruling today.

Applicants’ submissions 3. The Applicant stated that the court has jurisdiction to order stay pending Appeal despite not having jurisdiction.

4. Respondent’s submissions – I had no sight of this.

Analysis 5. The order of stay of proceedings is limited as opposed to stay of execution. The test for stay of proceedings is that: -a.There should be an appeal.b.The appeal may be rendered nugatory if the proceedings are continued.c.The Applicant will suffer irreparable harm.d.The Application has been without undue delay.

6. In this case the court declined to strike out proceedings. The Court relied on the decision of DT Dobie & Company Ltd vs Muchina [1982] eKLR, it was stated thus;“The Court ought to act very cautiously and carefully and consider all the facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the Court. At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way. As far as possible indeed, there should be no opinions expressed upon the Application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right.”

7. In Simon Kirima Muraguri & another v Equity Bank (Kenya) Limited & another [2021] eKLR, Justice E. C. Mwita, had this to say: -“21. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. In Postal Corporation of Kenya v I .T Inamdar & 2 Others [2004] 1 KLR 359, the court stated that the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.23. In The Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa (Civil Appeal No. 54 of 1999) the Court of Appeal stated: Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court.24. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed itself thus: A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.”

8. The issue at the appeal level is the issue of jurisdiction. If this case proceeds for hearing and then the Court of Appeal overturns the decision that is said to have been appealed against, nothing would have been lost. On the other hand, if the matter is stayed, and the Court finds the High Court was correct, precious time would have been lost.

9. There is no utility in allowing this application.

10. I therefore do not find merit in the application. I dismiss the same in limine with costs of Kshs. 20,000/= to the Respondent.

Determination 11. I therefore make the following orders: -a.The upshot of the foregoing, is that the Application dated 21/1/2022, lacks merit and is accordingly dismissed in limine.b.Costs of Kshs. 20,000/= to the Respondents

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 3RD DAY OF JULY, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:No appearance for partiesCourt Assistant - Aziza