[2017] KEHC 7645 (KLR)
The court found that although it is generally reluctant to grant stays of proceedings that may delay the conclusion of matters in the lower courts, the absence of opposition from the respondent and the existence of interim orders justified granting the stay. The court noted that the applicant could still appeal the...
Source-derived case information.
- Citation
- [2017] KEHC 7645 (KLR)
- Parties
- Applicant: Afri Pack Limited; Respondent: Onesmus Ndambuki Nzau
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 30 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application allowed; stay of proceedings granted pending appeal.
- Judges
- DO Ogembo, BC Koech
- Legal Topics
- Stay of Proceedings, Appeal Process, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Afri Pack Limited
Applicant
Onesmus Ndambuki Nzau
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of proceedings in the lower court pending the hearing and determination of the appeal.
- 2 Whether the applicant has established sufficient grounds to warrant a stay of proceedings.
Ratio Decidendi
The court found that although it is generally reluctant to grant stays of proceedings that may delay the conclusion of matters in the lower courts, the absence of opposition from the respondent and the existence of interim orders justified granting the stay. The court noted that the applicant could still appeal the outcome of the suit if dissatisfied, but, given the circumstances and the respondent's silence, it reluctantly allowed the application to stay proceedings in the lower court pending the determination of the appeal.
Court Disposition
Application allowed; stay of proceedings granted pending appeal.
Orders
- There be a stay of further proceedings in Mavoko PMCC No. 394 of 2015 pending the hearing and determination of the appeal.
- Costs be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL APPEAL NO. 30 OF 2016
AFRI PACK LIMITED......................................................APPLICANT
VERUS
ONESMUS NDAMBUKI NZAU...................................RESPONDENT
RULING OF THE COURT
The Application
1. The Notice of Motion application before the court is dated 19th August, 2016 and prays for the surviving order that there be stay of further proceedings in Mavoko PMCC No. 394 of 2015. Onesmus Ndambuki Nzau vs Afri Pack Limited pending the hearing and determination of the appeal herein, and that costs be in the cause.
2. The applicant’s case is that on 12th May, 2015, Onesmus Ndambuki Nzau, the Respondent herein, filed this suit in the Lower Court to wit, Mavoko PMCC No. 394 of 2015, against the appellant seeking damages for injuries that he allegedly sustained on 21st July, 2014. The hearing of the suit proceeded in the Lower Court on 23rd March, 2016. At the hearing of the suit, the court, on its own motion, expunged the Statement by the Appellant’s witness, Mr. Peter Nyukundi.The appellant is aggrieved by the Ruling/Order of the Court, and has lodged this appeal.
3. The applicant has applied to the Lower Court for certified copies of the typed transcript of proceedings.This matter has been scheduled for hearing in the Lower Court on 23rd August, 2016. The appellant is apprehensive that unless this application is heard urgently and the orders sought are granted, hearing of this matter will proceed on 23rd August, 2016 thereby rendering this application nugatory, and unless the proceedings in the Lower Court are stayed, the appellant’s appeal will be rendered nugatory.
Determination
4. There are already interim orders in the matter staying the said proceedings. The application is not opposed. It was served together with a hearing notice upon the respondent’s advocates. There is an affidavit of service filed herein on 8th November, 2016 to the effect. The application is therefore not opposed. It can only be inferred that the respondent has no objection to the application.
5. In my view, the High Court should be very slow to allowing applications whose intention is to stall proceedings in the Lower Courts, unless the necessity to do the same is established. In the instant case, even if the proceedings are not stayed, the appellant can still challenge the outcome of the suit in substantive appeal to the High Court on the judgment. This is an application which the High Court should not grant, especially if it were to be opposed. What I perceive from the silence of the respondent is that the respondent also wants this application to succeed. Perhaps the respondent also feels that there may have been a miscarriage of justice. In my view, even if there was miscarriage of justice, the appellant still has a chance to appeal the outcome of the suit.
6. Despite the above views, and very reluctantly, I allow the application as prayed and stay the said proceedings pending the intended appeal.
Orders accordingly.
………………....
E.K.O. OGOLA
JUDGE
DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF FEBRUARY, 2017
……………………
DAVID KEMEI
JUDGE
In the presence of:
Osindo – for Applicant