[2014] KEHC 5907 (KLR)
The court found that the application for stay of proceedings was made within a reasonable time, as it was filed two and a half months after the ruling. The applicant had demonstrated an intention to appeal by filing a Notice of Appeal. The court was satisfied that unless the stay was granted, the applicant could...
Source-derived case information.
- Citation
- [2014] KEHC 5907 (KLR)
- Parties
- Plaintiff: Damisha Building Contractors; Defendant: Auto Springs Manufacturers Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 141 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application for stay of proceedings granted with conditions
- Judges
- LN Mutende
- Legal Topics
- Stay of Proceedings, Appeals, Preliminary Objection, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damisha Building Contractors
Plaintiff
Auto Springs Manufacturers Ltd
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of proceedings pending the hearing and determination of the intended appeal.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant will suffer substantial loss if the stay is not granted.
Ratio Decidendi
The court found that the application for stay of proceedings was made within a reasonable time, as it was filed two and a half months after the ruling. The applicant had demonstrated an intention to appeal by filing a Notice of Appeal. The court was satisfied that unless the stay was granted, the applicant could suffer substantial loss by being compelled to pay damages on issues already determined. The court therefore exercised its discretion to grant a stay of proceedings, conditional upon the appeal being filed within three months from the date of the ruling, failing which the case would proceed to hearing.
Court Disposition
application for stay of proceedings granted with conditions
Orders
- Proceedings in the suit are stayed pending hearing and determination of the intended appeal, on condition that the appeal is filed within three months from the date of this order.
- In default of filing the appeal within three months, the case shall be set down for hearing.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL SUIT NO. 141 OF 2009
DAMISHA BUILDING CONTRACTORS .......................PLAINTIFF
VERSUS
AUTO SPRINGS MANUFACTURERS LTD ...............DEFENDANT
RULING
The application (Notice of Motion) dated 14th January, 2014 is brought pursuant to provisions of Order 42 rule 6(1) of the Civil Procedure Rules, 2010 and all enabling provisions and procedure of the law. It seeks an order of stay of proceedings in the suit pending hearing and determination of an intended appeal from the ruling delivered by the Court on the 30th October, 2011.
The application is based on grounds that the applicant being dissatisfied by the ruling of the court dismissing the Preliminary Objection raised dated 10th October 2012 intends to appeal against it and unless proceedings are stayed the appeal shall be rendered nugatory. The application is supported by an affidavit sworn by Harshad Patel the Chairman of the Applicant Company who stated that the respondent would not suffer any prejudice if the application sought is granted.
The application was served upon the respondent’s advocate who failed and/or refused to respond thereto.
To grant such an order, the applicant must demonstrate that the application was made without unreasonable delay and substantial loss will result if the order is not granted.
The ruling having been delivered on the 30th October, 2013 and this application having been filed 2 ½ months later it cannot be said that the delay was inordinate. It has been stated that if the order sought is not granted the applicant will be condemned to pay damages on issues that had been determined.
The applicants have filed a Notice of Appeal which is evidence that they are desirous of instituting the appeal against the order. In the premises, the proceedings in the suit shall be stayed pending hearing and determination of the intended appeal on condition that the appeal is filed within three (3) monthsfrom the date hereof. In default the case shall be set down for hearing.
It is so ordered.
DATED, SIGNED and DELIVEREDat MACHAKOS this 3RDday of APRIL 2014
L.N. MUTENDE
JUDGE