[2023] KEHC 24754 (KLR)
The court found that the applicant had made several attempts to serve the respondents with the application for stay of proceedings and had filed affidavits of service for each attempt. The respondents did not file any response or appear in court to oppose the application. The court was satisfied that the application...
Source-derived case information.
- Citation
- [2023] KEHC 24754 (KLR)
- Parties
- Plaintiff: The Co-operative Bank of Kenya Limited; Defendant: Seven Fourteen Limited; Defendant: Aresco Limited; Defendant: Joshua Mbithi; Defendant: Margaret Wangui; Defendant: George Mbithi Mutunga; Defendant: Stephen Kioko
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 314 of 2008
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed as prayed with costs to the applicant.
- Judges
- JWW Mong'are
- Legal Topics
- Stay of Proceedings, Pending Appeal, Party and Party Costs, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Co-operative Bank of Kenya Limited
Plaintiff
Seven Fourteen Limited
Defendant
Aresco Limited
Defendant
Joshua Mbithi
Defendant
Margaret Wangui
Defendant
George Mbithi Mutunga
Defendant
Stephen Kioko
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of proceedings pending the determination of the plaintiff's appeal.
- 2 Whether the applicant properly served the respondents with the application for stay.
- 3 Whether the lack of opposition from the respondents affects the outcome of the application.
Ratio Decidendi
The court found that the applicant had made several attempts to serve the respondents with the application for stay of proceedings and had filed affidavits of service for each attempt. The respondents did not file any response or appear in court to oppose the application. The court was satisfied that the application was properly served and that the respondents had notice of the proceedings. Given that the appeal was still pending and the application was unopposed, the court exercised its discretion to grant a stay of proceedings, including the taxation of costs, pending the determination of the appeal. The court also awarded costs of the application to the applicant.
Court Disposition
Application for stay of proceedings allowed as prayed with costs to the applicant.
Orders
- There shall be a stay of any further proceedings in this case, including the taxation of the defendants' party and party bill of costs dated 16th March 2021, pending the hearing and determination of the plaintiff's appeal at the Court of Appeal, being Civil Appeal No. E455 of 2020.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
29 paragraphs
Co-operative Bank of Kenya Limited v Seven Fourteen Limited & 5 others (Civil Case 314 of 2008) [2023] KEHC 24754 (KLR) (Commercial and Tax) (30 October 2023) (Ruling)
Neutral citation: [2023] KEHC 24754 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Civil Case 314 of 2008
JWW Mong'are, J
October 30, 2023
Between
The Co-operative Bank of Kenya Limited
Plaintiff
and
Seven Fourteen Limited
1st Defendant
Aresco Limited
2nd Defendant
Joshua Mbithi
3rd Defendant
Margaret Wangui
4th Defendant
George Mbithi Mutunga
5th Defendant
Stephen Kioko
6th Defendant
Ruling
1. On 16th April 2021 the Applicant moved this court by a Notice of Motion brought under Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B, 3A of the Civil Procedure Act and 159(2)(d) of the Constitution of Kenya, 2010 seeking the following orders:-1. Spent2. Spent3. That there be a stay of any further proceedings in this case and in particular the taxation of the Defendants’ Party and Party Bill of Costs dated 16th March, 2021 filed in pursuance of the Order of this Honourable Court, made on 31st March 2020, pending the hearing and determination of the Plaintiff’s Appeal at the Court of Appeal, being Civil Appeal No. E455 of 2020. 4.That costs of this application be provided for.
2. The Application was supported on the grounds set on its face and the supporting affidavit of Elissa Otembo sworn on 16th April 2021. The Respondents having been served with the Application did not file any response to the same. The matter came up before court on several occasions and in those occasions there was no appearance or representation by the Respondents or their advocates. A perusal of the court record reveals that the Applicant made several attempts to serve the Respondents and did on each occasion file an Affidavit of Service.
3. I have noted the application filed herein seeks to stay proceedings in this case pending the hearing and determination of the Appeal filed by the Applicant in Civil Appeal No. E455 of 2020. The same is yet to be determined. I also note that several attempts have been made by the Applicant to notify the Respondents of the same without much success. The application is therefore not opposed and the same is allowed as prayed with costs to the Applicant.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF OCTOBER 2023………………………………..J. W. W. MONG’AREJUDGEIn the Presence of:-Mr. King’ara holding brief for Mr. Kimondo Mubea for the Plaintiff.No appearance for the Defendants.Amos - Court Assistant