[2022] KEHC 17037 (KLR)

Dogra v Coast Development Authority (Civil Suit 158 of 2003) [2022] KEHC 17037 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 17037 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 158 of 2003

MN Mwangi, J

October 7, 2022

Between

Bhupinder Singh Dogra

Plaintiff

and

Coast Development Authority

Defendant

Ruling

1. The application before this court is a notice of motion dated February 3, 2022 brought under the provisions of sections 6 and 3A of the Civil Procedure Act, order 51 rule 1 of the Civil Procedure Rules and article 159 of the Constitution of Kenya and all enabling laws. The defendant seeks the following orders-i.Spent;ii.That there be a stay of proceedings in this case pending the hearing and determination of the appeal by the defendant against the ruling of this honourable court delivered on February 26, 2021; andiii.That the costs of this application be provided for.

2. The application is anchored on the supporting affidavit sworn on February 3, 2022 by Said Gongo, the defendant’s legal manager. In opposition thereto, the plaintiff filed a replying affidavit sworn on February 15, 2022 by Bhupinder Singh Dogra, the plaintiff herein.

3. The application was canvassed by way of written submissions. The defendant’s submissions were filed on June 13, 2022 by the law firm of Garane & Somane Advocates, whereas the plaintiff’s submissions were filed on June 10, 2022 by the law firm of Munyithya, Mutugi, Umara & Muzna Company Advocates.

4. Mr Abdulahi, learned counsel for the defendant submitted that the defendant has filed an application for enlargement of time to file an appeal at the Court of Appeal in Civil Application No 37 of 2021, which application is yet to be determined by the said court. He further submitted that the main issues in the intended appeal are whether the suit herein is time barred and if this court has jurisdiction to hear and determine the suit. He stated that jurisdiction is primordial in every suit and it has to be there when the suit is filed in the first place. He stated that where a court has no jurisdiction, there would be no basis for continuation of proceedings.

5. He relied on the provisions of order 42 rule 6(1) of the Civil Procedure Rules and submitted that the applicant has an arguable appeal with high chances of success since the cause of action arose on July 8, 1997 when the alleged payment was due to the plaintiff, whereas the suit herein was filed on July 9, 2003 after the lapse of the statutory period. He cited the case of E Torgbor v Ladislaus Odongo Ojuok [2015] eKLR, where the Court of Appeal in allowing an application for stay of proceedings held that the intended appeal shall not only be rendered nugatory but there shall be waste of valuable judicial time if it turns out that the Employment and Labour Relations Court had no jurisdiction to hear and determine statute barred claims.

6. Mr Abdulahi relied on article 159(2)(a), (b), (c) and (d) of the Constitution as read with sections 1A and 1B of the Civil Procedure Act and submitted that the applicant has demonstrated the need to stay the proceedings herein. In citing the case of Ezekiel Mule Musembi v H Young & Company (EA) Limited [2019] eKLR, he submitted that it is in the interest of justice for this court to exercise its discretion and grant stay of proceedings pending the hearing and determination of the defendant’s appeal.

7. Mr J Munyithya, learned counsel for the plaintiff cited order 42 rule 6 of the Civil Procedure Rules, 2010 and submitted that this court lacks jurisdiction to grant stay of proceedings since there is no appeal. In addition, he submitted that the issue of stay lies with the appellate court. He relied on the Supreme Court holding in James Mbatia Thuo & Ephantus Mwangi v Kenya Railways Corporation & Attorney General of Kenya [2018] eKLR. He submitted that extension of time had not been granted by the Court of Appeal whereas the discretion to stay proceedings flows from the existence or possibility of filing an appeal within the stipulated period.

8. He also cited the case of Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR, where the Court of Appeal interpreted the High Court’s jurisdiction under section 79G of the Civil Procedure Act and submitted that to grant stay of proceedings without an appeal would be oppressive to the plaintiff. Mr J Munyithya contended that since the application herein has been grounded on section 6 of the Civil Procedure Act which provides for the doctrine of sub judice, it is incompetent as no evidence had been availed to the effect that there were similar proceedings before any competent court on the issues raised in the suit herein.

9. He also submitted that what the court issued on February 26, 2021 was a negative order dismissing an application for striking out of the suit. To this end, he relied on the case of Elusive Estates Limited v Kenya Posts & Telecommunications Corp & another [2005] 1 EA 53.

Analysis and Determination. 10. This court has considered the application filed herein, the affidavit in support thereof, the replying affidavit by the plaintiff and the written submissions by counsel for the parties. The issue that arises for determination is whether the defendant has met the requirements to warrant the grant of an order for stay of proceedings.

11. In the affidavit filed by the defendant, it deposed that the applicant has filed an application for enlargement of time to file the notice of appeal at the Court of Appeal in Civil Application No 37 of 2021 which is yet to be heard and determined. The defendant further deposed that the main issue in the intended appeal is on the jurisdiction of the trial court to hear and determine the suit, as the suit is time barred.

12. It was stated by the defendant that there is also another appeal that is yet to be heard and determined which was filed by the plaintiff on February 6, 2019 being an appeal from the ruling of Judge P J Otieno delivered on January 18, 2019 therefore, the applicant will be grossly prejudiced if the matter was to proceed in the form in which it is now.

13. The plaintiff in his replying affidavit deposed that the application herein has no grounding in law as the defendant has not filed an appeal against this court’s decision of March 26, 2021. He averred that the period to file an appeal having lapsed, only the appellate court can consider the issue of extension of time and stay of proceedings.

14. It was stated by the plaintiff that Mombasa Civil Appeal No 11 of 2019 was dismissed on February 7, 2020 with costs to the plaintiff, which costs have since been settled by the defendant’s advocates. The plaintiff averred that this court’s jurisdiction on stay of proceedings only applies if an appeal has been filed and that he will be prejudiced with the pendency of the matter herein if stay of proceedings is issued for an appeal that does not exist.

15. It is trite that this court has the discretion to issue and/or decline to issue an order for stay of proceedings. Courts are however encouraged to exercise this discretion cautiously after due consideration of the merits of the case and the likely effect on the ends of justice. This discretion is derived from the provisions of order 42 rule 6(1) of the Civil Procedure Rules that reads as follows-“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”

16. The principles to be considered by the court in exercising discretion to stay proceedings were laid down by Ringera J (as he then was), in the case ofRe Global Tours & Travel Ltd HC Winding Up Cause No43 of 2000 that -“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” (emphasis added).

17. Similarly, in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR, the court in disallowing an application similar to the instant one stated as follows -“See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition, Vol 37 page 330 and 332 that: -“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

18. The underlying interest in an application for stay of proceedings is that the appeal should not be rendered nugatory, therefore, before a court can grant stay of proceedings, an applicant has to establish that it has an arguable appeal, such that if stay of proceedings is not granted, the appeal will be rendered nugatory, and that the application was filed expeditiously.

19. In the instant application, it is not disputed that the defendant has not yet filed an appeal before the Court of Appeal. Its counsel indicated that it has filed an application for enlargement of time to file an appeal at the Court of Appeal in Civil Application No 37 of 2021, which application is yet to be determined by the Court of Appeal. In the absence of a valid appeal filed in the Court of Appeal, this court has no way of establishing whether the defendant has an arguable appeal or not.

20. In the application herein, the defendant is seeking stay of proceedings pending the hearing and determination of an appeal. Having found that there is no appeal filed against the ruling of this court delivered on February 26, 2021, this court cannot grant an order for stay of proceedings indefinitely as this would not only amount to an abuse of the court process, but would occasion an injustice to the plaintiff who filed his suit in the year 2003 and has been waiting for over fifteen years to have the said suit heard and determined on its merits in line with the principles of natural justice, the right to be heard and of a fair trial. To this end, I am guided by the provisions of article 50 of the Constitution of Kenya 2010 that-“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate another independent and impartial tribunal or body.”

21. On whether the application herein has been filed expeditiously, the ruling which the applicant intends to appeal against was delivered on February 26, 2021, whereas the application herein was filed on February 9, 2022, almost a year after delivery of the said ruling. This court finds that the application herein was filed inordinately late but the applicant has not attempted or given a sufficient explanation or reasons for the delay.

22. The upshot is that the application dated February 3, 2022 is bereft of merit. It is dismissed with costs to the plaintiff.It is so ordered.

DELIVERED, DATED AND SIGNED AT MALINDI ON THIS 7TH DAY OF OCTOBER, 2022. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of –Ms Umara h/b for Mr. Joseph Munyithya for the plaintiffNo appearance for the defendantMr. Oliver Musundi – Court Assistant.