[2015] KEHC 1147 (KLR)
The court found that the applicant had demonstrated a real risk of prejudice and conflicting decisions if the Isiolo SPMCC No. 33 of 2011 matter proceeded independently while the constitutional petition on the same subject matter was pending before the High Court. The respondent, having been properly served, failed...
Source-derived case information.
- Citation
- [2015] KEHC 1147 (KLR)
- Parties
- Applicant: Charity Nyaruai Nyamu; Respondent: Abdirahim Haji Ahmed
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 48 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay and Transfer of Proceedings
- Outcome
- Application allowed in terms of prayer 5 only; costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Stay of Proceedings, Transfer of Suit, Consolidation of Cases, Land Allocation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charity Nyaruai Nyamu
Applicant
Abdirahim Haji Ahmed
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay and Transfer of Proceedings
Legal Issues
- 1 Whether proceedings in Isiolo SPMCC No. 33 of 2011 should be stayed pending determination of Meru High Court Constitutional Petition No. 6 of 2011.
- 2 Whether the respondent's failure to file submissions justifies granting the application as prayed.
- 3 Whether there is a risk of contradictory decisions if both matters proceed independently.
Ratio Decidendi
The court found that the applicant had demonstrated a real risk of prejudice and conflicting decisions if the Isiolo SPMCC No. 33 of 2011 matter proceeded independently while the constitutional petition on the same subject matter was pending before the High Court. The respondent, having been properly served, failed to file submissions or contest the application. The court exercised its discretion to allow the application in terms of prayer 5 only, thereby staying the proceedings in Isiolo SPMCC No. 33 of 2011 until the hearing and determination of Meru High Court Constitutional Petition No. 6 of 2011. Costs were ordered to be in the cause.
Court Disposition
Application allowed in terms of prayer 5 only; costs in the cause.
Orders
- Proceedings in Isiolo SPMCC No. 33 of 2011 are stayed until the hearing and determination of Meru High Court Constitutional Petition No. 6 of 2011.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC CIVIL APPLICATION NO 48 OF 2015
CHARITY NYARUAI NYAMU..............................................APPLICANT
VERSUS
ABDIRAHIM HAJI AHMED ...........................................RESPONDENT
R U L I N G
This application is dated 2nd day of July, 2015. It states that it is predicated upon Order 51 Rule 1 and 3 of the Civil procedure Rules and Section 6, 17 and 18 of the Civil Procedure Act and all the enabling provisions. It seeks order that:-
This application be certified as urgent.
That service of this application be dispensed with in the 1st instance.
That this application be heard experte in the 1st instance.
That there be stay of proceedings in Isiolo Senior Principal Magistrate’s case No 33 of 2011 pending the hearing and determination of this application.
That there be stay of the proceedings in ISIOLO SPMCC NO. 33 of 2011 until the hearing and determination of Meru High Court Constitutional Petition No. 33 of 2011.
That in the alternative, Isiolo SPMCC No. 33 of 2011 be transferred to Meru High Court and be consolidated with High Court Constitutional Petition No. 6 of 2011.
That cost incidental to this application be provided for by the respondent.
The application is buttressed by the affidavit of Charity Nyaruai Nyamu and has the following grounds:-
That the suit property herein is plot No. MB 478 within Mwangaza Area of Isiolo.
That the respondent is alleged to have balloted this plot and he was given by the now defunct County Council of Isiolo.
That the whole process of the alleged balloting is contested by the residents of Mwangaza Area of Isiolo in Constitutional Petition No. 6 of 2011 where the applicant is one of the Petitioners.
That the respondent has sued the applicant in Isiolo SPMCC No 33 of 2011 on the basis of that illegal balloting which residents are challenging as a community in Petition No. 6 of 2011.
That the applicant will be greatly prejudiced if there is contradictory decision in Isiolo SPMCC No. 33 of 2011 and in Petition No. 6 of 2011 at Meru High Court.
This matter came up for directions to confirm filing and exchange of Submissions on 9/11/2015. The applicant has filed Submissions but the Respondent has not done so. I do confirm that the respondent’s Advocate had been properly served and therefore aware of this date. As he has not filed his Submissions, I am unable to fix a date for the Ruling.
Mr. Ondieki has asked the Court to allow this application as the respondent is merely delaying the matter. I find Mr. Ondieki’s oral application meritorious. In the Circumstances, the application is allowed in terms of prayer 5 only. Costs shall be in the cause.
Delivered in Open Court at Meru this 9th day of November, 2015 in the presence of:-
CC: Lilian /Daniel
Ondieki for the Applicant.
P. M. NJOROGE
JUDGE