[2021] KEELC 4273 (KLR)
The court found that if proceedings in the subordinate court were allowed to continue before the determination of the appeal, there was a real risk of wasting judicial time, especially if the appeal ultimately succeeded. The court noted that the main issue in the appeal was whether the trial magistrate erred in...
Source-derived case information.
- Citation
- [2021] KEELC 4273 (KLR)
- Parties
- Appellant: Charles Masinde; Respondent: Samuel Mwaura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 8 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application for stay of proceedings allowed
- Legal Topics
- Stay of Proceedings, Leave to Amend Pleadings, Counterclaim, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Masinde
Appellant
Samuel Mwaura
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of further proceedings in Kitale Chief Magistrate’s Land Case No. 2 of 2015 should be granted pending appeal.
- 2 Whether failure to grant stay would prejudice the appellant.
Ratio Decidendi
The court found that if proceedings in the subordinate court were allowed to continue before the determination of the appeal, there was a real risk of wasting judicial time, especially if the appeal ultimately succeeded. The court noted that the main issue in the appeal was whether the trial magistrate erred in dismissing the application for leave to amend the defence and raise a counterclaim, including the joinder of additional parties. Since the respondent did not oppose the application, and considering the potential prejudice to the appellant and the efficient use of judicial resources, the court exercised its discretion to grant a stay of proceedings in the lower court pending the...
Court Disposition
application for stay of proceedings allowed
Orders
- Stay of further proceedings in Kitale Chief Magistrate’s Land Case No. 2 of 2015 granted pending hearing and determination of this appeal.
- The appellant shall file and serve the record of appeal within 45 days, failing which the stay shall stand automatically vacated.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT KITALE
ELC APPEAL NO. 8 OF 2020
CHARLES MASINDE..................................APPELLANT
VERSUS
SAMUEL MWAURA.................................RESPONDENT
RULING
1. By a notice of motion dated 3/11/2020 and filed on 6/11/2020 brought under Sections 1A, 1Band63of theCivil Procedure Act andOrder 451of theCivil Procedure Rulesthe appellant seeks the following orders:-
…spent.
That this honourable court be pleased to order stay of further proceedings in Kitale Chief Magistrate’s Land Case No. 2 of 2015 pending hearing and determination of this appeal.
…spent.
Costs be provided for.
2. The application is supported by affidavit of the appellant’s counsel sworn on 3/11/2020. The basis of the application is that this appeal is likely to be rendered nugatory; that the appeal raises substantial issues of law and that the appeal and application have been made without delay. Further, it is stated that the appellant shall suffer substantial loss and damage unless the orders sought are granted. An affidavit of service of the application on the respondent was filed on 23/11/2020.
Submissions
3. The court directed that the appeal will be disposed of by way of written submissions. The appellant filed his written submissions on 23/12/2020. The respondent did not file any response or submissions in respect of the application.
Determination
4. The issue that arises in the instant application is whether a stay of further proceedings in Kitale Chief Magistrate’s Land Case No. 2 of 2015ought to be granted.
5. The appeal herein has already been filed. The main issue raised in the appeal is whether the trial magistrate erred in law and in fact in dismissing the application seeking leave to amend the appellant’s defence in the lower court. That is an issue to be determined in the main appeal. What this court requires to determine in the instant application is whether failure to stay the proceedings in the lower court may prejudice the appellant herein.
6. I have read the proposed amended defence and counterclaim that was rejected. It is apparent that the appellant was intent on raising a counterclaim and enjoining two more parties to that counterclaim besides the plaintiff in the original plaint. The merits or demerits of that course of action is to be considered in the main appeal herein and this court must restrain itself from commenting thereon at this stage as that is an issue for this court to determine in the substantive appeal. In the meantime it is as clear as day that if the proceedings in the subordinate court are allowed to go on before this appeal is determined it may be a great waste of judicial time on the part of the trial court perchance this court finally rules in favour of the appellant herein.
7. For the foregoing reasons I allow the application dated 3/11/2020 in terms of prayer No. (b). In order to expedite this appeal I hereby order that the appellant shall file the record of appeal and serve within45 days in default of which the orders of stay shall stand automatically vacated.
8. This appeal shall be brought up on 23rd March 2021 for further directions.
It is so ordered.
Dated, signedanddeliveredatKitale via electronic mail on this 2ndday of February, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.