[2009] KEHC 975 (KLR)
The court found that there was no executable order arising from the dismissal of the preliminary objection, rendering the prayer for stay of execution incompetent. However, since the appeal raised the issue of jurisdiction of the subordinate court, and proceeding with the trial could render the appeal nugatory if...
Source-derived case information.
- Citation
- [2009] KEHC 975 (KLR)
- Parties
- Appellant: AIMI MA KILUNGU; Respondent: CHARLOTTE JOYCE NZOKA (suing as legal representative of the estate of CHARLES AMBROSE NZOKA)
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 158 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of execution dismissed; stay of proceedings in subordinate court granted pending appeal.
- Judges
- I Lenaola
- Legal Topics
- Stay of Proceedings, Jurisdiction of Subordinate Courts, Preliminary Objection, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AIMI MA KILUNGU
Appellant
CHARLOTTE JOYCE NZOKA (suing as legal representative of the estate of CHARLES AMBROSE NZOKA)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether there is any executable order arising from the dismissal of a preliminary objection warranting a stay of execution.
- 2 Whether the proceedings in the subordinate court should be stayed pending the determination of the appeal on jurisdiction.
Ratio Decidendi
The court found that there was no executable order arising from the dismissal of the preliminary objection, rendering the prayer for stay of execution incompetent. However, since the appeal raised the issue of jurisdiction of the subordinate court, and proceeding with the trial could render the appeal nugatory if the appellate court later found lack of jurisdiction, it was in the interests of justice to stay the proceedings in the subordinate court pending the determination of the appeal. The court exercised its discretion to grant a stay of proceedings, ensuring that the question of jurisdiction is resolved before the trial continues, thereby preventing possible injustice to the parties,...
Court Disposition
Application for stay of execution dismissed; stay of proceedings in subordinate court granted pending appeal.
Orders
- Prayer for stay of execution is dismissed as incompetent.
- All proceedings in CMCC No. 422/2008 Machakos are stayed pending the hearing and determination of this appeal.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL APPEAL 158 OF 2009
AIMI MA KILUNGU …………………………………………………….…… APPELLANT
VERSUS
CHARLOTTE JOYCE NZOKA( suing as legal representative of the estate of the CHARLES AMBROSE NZOKA …………………………………..…RESPONDENT
RULING
1. The Application dated 23. 2.2009 seeks orders that there be a stay of execution of the ruling dated 25. 8.2008 in CMCC No.422 of 2008 Machakos and the decree subsequent to it.
2. To put matters into perspective, the present Appeal is against a Ruling delivered by Hon. E. Nderitu, SRM on 25. 8.2008 within CMCC 422/2008. The Ruling was based on a preliminary objection raised by the Appellant, (Defendant in that suit) as to the jurisdiction of the subordinate court to try the dispute between the parties. The learned magistrate overruled the objection and later dismissed an application similar to the present one. The Appeal before me is limited to whether the Ruling dismissing the preliminary objection was proper within the meaning of section 2 of the Companies Act, Cap 486 Laws of Kenya and whether the subordinate court thereby usurped the jurisdiction conferred on this court by that statute.
3. I have with that background in mind looked at the Supporting Affidavit sworn by one Josiah Katungwa, Treasurer of the Applicant Company on 23. 2.2009. I have also read the Replying Affidavit of the Respondent sworn on 10. 6.2009.
4. Firstly, I do not understand that there is any thing to stay save perhaps the proceedings in the subordinate court. When a ruling is delivered dismissing a preliminary objection, what execution proceedings can issue from that order of dismissal? I see none on my part and to that extent the first part of prayer 3 of the Application is incompetent and all the submissions by both advocates are in vain. Parties seem to have completely misunderstood the issue(s) to be addressed in the circumstances of the Appeal and Application. The second part of prayer 3 seeks to stay “the proceedings/trial in CMCC No.422/2008 Machakos … pending the hearing and determination of this appeal.”
5. It is argued that if the trial proceeds, the appeal before this court will be rendered nugatory and yet the appeal has got good chances of success. I have called for and I have examined the record in CMCC 422/2008 and I agree that once the issue of jurisdiction is raised on appeal, then it would be in the interests of justice to dispose of that question as quickly as possible. Should this court find that the subordinate court has no jurisdiction, then as far as that court is concerned, the matter rests. Should this court on the other hand find that the subordinate court has jurisdiction, then the matter will be remitted back to it for hearing and determination. If however, that court proceeds to hear the dispute and on appeal it is found not to have jurisdiction, injustice would be occasioned to all parties but more so the Appellant who takes the view that there is no jurisdiction.
6. In the event, pending the hearing and determination of the Appeal herein, I will exercise discretion and stay all the proceeding in CMCC No. 422/2008.
7. Costs shall abide the Appeal.
8. Orders accordingly.
Dated and delivered at Machakos this 9th day of October 2009.
Isaac Lenaola
Judge
In the presence of; Mr. O.N. Makau for Applicant
Mrs Wambua for Respondent
Isaac Lenaola
Judge