[2018] KEHC 4679 (KLR)
The court found that the defendant had not demonstrated that its appeal would be rendered nugatory if the stay of proceedings was denied. The judge reasoned that the defendant retains the right to challenge the order dismissing its motion even after the substantive hearing of the suit. The court was not convinced...
Source-derived case information.
- Citation
- [2018] KEHC 4679 (KLR)
- Parties
- Plaintiff: Clement Muturi Kigano; Defendant: Shengli Engineering Construction Group Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 212 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Stay of Proceedings, Appeal Pending, Striking Out Suit, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Muturi Kigano
Plaintiff
Shengli Engineering Construction Group Company Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the defendant is entitled to a stay of proceedings pending the hearing and determination of its intended appeal.
- 2 Whether refusal to grant stay would render the defendant's appeal nugatory.
- 3 Whether the defendant has demonstrated sufficient grounds for stay of proceedings.
Ratio Decidendi
The court found that the defendant had not demonstrated that its appeal would be rendered nugatory if the stay of proceedings was denied. The judge reasoned that the defendant retains the right to challenge the order dismissing its motion even after the substantive hearing of the suit. The court was not convinced that the appeal would be rendered useless or that exceptional circumstances existed to justify a stay. Accordingly, the application for stay of proceedings was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The defendant's motion for stay of proceedings is dismissed.
- Costs to abide the outcome of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER 212 OF 2011
CLEMENT MUTURI KIGANO............................................................................................ PLAINTIFF
VERSUS
SHENGLI ENGINEERING CONSTRUCTION GROUP COMPANY LIMITED.........DEFENDANT
R U L I N G
The subject matter of this ruling is the motion dated 21st November, 2017 taken out by the Defendants/Applicant. In the aforesaid motion the Defendant sought for an order for stay of all proceedings in this suit pending the hearing and determination of the intended appeal filed by the Defendant. The motion is supported by the affidavit of Samir Inamdar. When served with the motion, the Plaintiff filed a replying affidavit he swore to oppose the application.
When the motion came up for inter-parties hearing, Learned counsels appearing in the matter recorded a consent order to have the motion disposed of by written submissions. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the motion. I have further considered the rival submissions. It is the submission of the Defendant/Applicant that on 31st March, 2017, this court delivered a ruling in which the court dismissed the Defendant’s motion dated 19th May, 2016 in which the Defendant had sought for this suit to be struck out and dismissed on the basis that liability for the loss and damage pleaded in the amended plaint could not be attached to the Defendant.
The Defendant stated that it has now filed an appeal before the Court of Appeal seeking to impugn the dismissal order. This court has been asked to stay further proceedings until the appeal is heard and determined. The Defendant further submitted that it would be able to show the Court of Appeal that the suit discloses no reasonable cause of action and that the same is frivolous, vexatious and an abuse of the court process and ought to have been struck out and or dismissed. This court was urged to grant the order because failure to do so will render the pending appeal nugatory.
The Plaintiff is of the submission that the Defendant’s application is bereft of good grounds to justify the grant of an order for stay. The Plaintiff further argued that the Defendant has not shown the prejudice it would suffer if the order is denied. The Plaintiff also averred that stay of proceedings is a serious, grave and fundamental interference with the right that a party has to conduct his litigation towards the trial on the basis of substantive merits.
Having considered the material placed before this court and the rival arguments, it is clear in my mind that if the order for stay is denied, the substantative hearing of the suit will proceed. The Defendant has stated that its appeal will be rendered nugatory.
I have already set out the background of this appliction while considering the arguments of the parties. Basically, the Defendant had applied to have this suit struck out and or dismissed because liability could not be assigned to it. This court saw no merit in the appliction.
The Defendant has now appealed against the order dismissing its motion to the Court of Appeal. In the circumstances, can it be said that the appeal will be rendered nugatory? I do not think so. I am convinced that the Defendant still retains the right to challenge the order even after the suit has been heard and determined. I am not convinced that the appeal will be rendered useless.
In the end, I find no merit in the motion. It is dismissed with costs abiding the outcome of this suit.
Dated, signed and delivered at Nairobi this 20th day of July, 2018.
............................
J K SERGON
JUDGE
In the presence of
................................. for the Plaintiff
................................. for the Defendant