[2023] KEHC 20212 (KLR)
The court determined that the recusal application filed by the 4th defendant takes precedence over all other pending applications, as it directly concerns the court's ability to continue presiding over the matter. To preserve the integrity of the proceedings and avoid unnecessary expenditure of judicial resources,...
Source-derived case information.
- Citation
- [2023] KEHC 20212 (KLR)
- Parties
- Plaintiff: Accredo AG; Defendant: Salama Beach Hotel Limited; Defendant: Hans Juergen Langer; Defendant: Zahra Langer; Defendant: Steffano Lucelli; Defendant: Isaac Rodrot
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 118 of 2009
- Procedural Posture
- Civil Suit / Directions on Interlocutory Applications and Recusal Motion
- Outcome
- Interim stay of pending applications; directions issued for service and responses to recusal application; costs awarded for adjournment.
- Judges
- SM Githinji
- Legal Topics
- Joinder of Parties, Recusal of Judge, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Accredo AG
Plaintiff
Salama Beach Hotel Limited
Defendant
Hans Juergen Langer
Defendant
Zahra Langer
Defendant
Steffano Lucelli
Defendant
Isaac Rodrot
Defendant
Procedural Posture
Civil Suit / Directions on Interlocutory Applications and Recusal Motion
Legal Issues
- 1 Whether the court should stay pending applications in light of a new recusal application by the 4th defendant.
- 2 Whether the 4th defendant should bear costs for adjournment caused by late change of counsel and instructions.
- 3 What directions should be given for service and responses to the recusal application.
Ratio Decidendi
The court determined that the recusal application filed by the 4th defendant takes precedence over all other pending applications, as it directly concerns the court's ability to continue presiding over the matter. To preserve the integrity of the proceedings and avoid unnecessary expenditure of judicial resources, the court stayed the hearing of the applications dated November 22, 2022 and April 25, 2023 pending the determination of the recusal application. The court further directed the 4th defendant to serve the recusal application on the 5th defendant and for all relevant parties to file their responses and submissions within specified timelines. The adjournment was attributed to the...
Court Disposition
Interim stay of pending applications; directions issued for service and responses to recusal application; costs awarded for adjournment.
Orders
- The applications dated November 22, 2022 and April 25, 2023 are stayed pending the hearing and determination of the application dated July 10, 2023.
- The 4th defendant to serve the application dated July 10, 2023 to the 5th defendant and file submissions within 7 days.
Full Case Text
Judgment text and source record
26 paragraphs
Accredo AG v Salama Beach Hotel Limited & 4 others (Civil Suit 118 of 2009) [2023] KEHC 20212 (KLR) (11 July 2023) (Directions)
Neutral citation: [2023] KEHC 20212 (KLR)
Republic of Kenya
In the High Court at Malindi
Civil Suit 118 of 2009
SM Githinji, J
July 11, 2023
Between
Accredo AG
Plaintiff
and
Salama Beach Hotel Limited
1st Defendant
Hans Juergen Langer
2nd Defendant
Zahra Langer
3rd Defendant
Steffano Lucelli
4th Defendant
Isaac Rodrot
5th Defendant
Directions
1. What was coming up today before this court is the hearing of the Intended 6th Defendant’s application dated November 22, 2022[the 1st application]. That application sought amongst other orders that the intended 6th Defendant be joined to this suit as the 6th Defendant and leave be granted for the intended 6th Defendant to continue with this suit as a derivative suit. It also appears that all the parties save for the 4th Defendant filed their responses and submissions to that application.
2. Notably, on May 8, 2023, Mr Munyithya, counsel for the 5th Defendant filed another application dated April 25, 2023 seeking to stay this suit pending the determination of Appeal No 28 of 2021. That appeal was filed against Nyakundi J’s ruling dated April 6, 2021 in HCCC No 10 of 2019 consolidating this suit with HCCC No 10 of 2019. There are also stay orders in that suit staying that ruling by Nyakundi J. Again, that application was to be mentioned today for directions.
3. However, Mr Karanja, now appearing for the 4th Defendant filed the application dated July 10, 2023 this morning. Essentially, in that application, the 4th Defendant wants this court to recuse itself from any further conduct in this matter.With this new application filed by Mr Karanja, I find it prudent that the application dated July 10, 2023 takes precedence for reasons that the same concerns would affect my arbiter in this suit. In the circumstances, I direct that;1. The applications dated November 22, 2022 and April 25, 2023 be stayed in the interim pending the hearing and determination of the application dated July 10, 2023. 2.The 4th Defendant to serve the application dated July 10, 2023 to the 5th Defendant and file their submissions to that application within 7 days from today.3. The Plaintiff, 1st, 2nd, 3rd and 5th Defendants to file their responses and submissions to the application dated 10/7/2023 within 14 days upon service by the 4th Defendant/applicant.4. Adjournment is caused by the 4th Defendant who changed the counsel late and gave instructions at a short notice. He should pay today’s costs to the Plaintiff, 1st, 2nd and 3rd defendants for travelling and accommodation. I do also condemn him to pay court adjournment fee. Counsels will submit their claims with supporting documents for payment. The counsel for the 5th defendant appeared virtually and court had ordered for physical appearance. He is not entitled to costs. For 6th defendant they are not yet parties and costs at this stage does not apply to them.5. Ruling on recusal application on July 31, 2023. Further directions on applications dated November 22, 2022 and April 25, 2023 will be given on the said date.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 11TH DAY OF JULY, 2023…………………………………………………S M GITHINJIJUDGE