[2018] KEELC 1040 (KLR)
The court found that there were no subsisting orders against the defendant that would justify a stay of proceedings. The defendant's claim that the hearing of the suit would render his appeal nugatory was unsupported, as the court had previously disallowed the plaintiff's prayer for an injunction and there were no...
Source-derived case information.
- Citation
- [2018] KEELC 1040 (KLR)
- Parties
- Plaintiff: Esther Kimathi Mwimbi; Defendant: Zaverio Mithika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 153 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs to plaintiff
- Legal Topics
- Stay of Proceedings, Pending Appeal, Judicial Review Effects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Kimathi Mwimbi
Plaintiff
Zaverio Mithika
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 Nyeri Appeal case No. 105/2018.
- 2 Whether there are any subsisting orders against the defendant justifying a stay of proceedings.
Ratio Decidendi
The court found that there were no subsisting orders against the defendant that would justify a stay of proceedings. The defendant's claim that the hearing of the suit would render his appeal nugatory was unsupported, as the court had previously disallowed the plaintiff's prayer for an injunction and there were no adverse orders in place. The court emphasized that the defendant should participate in the hearing of the case and, if dissatisfied with the outcome, pursue an appeal. The application for stay was therefore found to be without merit and was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs to plaintiff
Orders
- The application dated 13.7.2018 is dismissed with costs to the plaintiff.
- Parties to comply with Order II and set the suit down for hearing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC NO. 153 OF 2017
ESTHER KIMATHI MWIMBI............................PLAINTIFF/APPLICANT
VERSUS
ZAVERIO MITHIKA.....................................DEFENDANT/RESPONDENT
RULING
1. The brief background to this matter is that defendant had filed an application on 19. 7.2017 seeking for a stay of this suit pending the hearing and determination of Meru Judicial Review case No. 7 of 2017 which case was before me. I granted the orders vide my ruling of 13. 11. 2017.
2. On 26. 2.2018, plaintiff filed an application to set aside the earlier orders of 13. 11. 2017 as the Judicial Review case was over, Judgment having been delivered on 23. 1.2018. I allowed the application vide the ruling of 8. 3.2018.
3. Defendant is now back in court with an application filed on 13. 7.2018. He is seeking for a stay of these proceedings pending the hearing of the Nyeri Appeal case No. 105/2018 filed against the decision in Judicial Review case No. 7/2017.
4. The application has been opposed vide the replying affidavit of the plaintiff.
5. I have given due consideration to all the arguments, submissions and authorities proffered by the rival parties. Applicant’s claim that the hearing of this case shall render his appeal nugatory are without a basis. There are no subsisting orders against any parties as the court even disallowed plaintiff’s prayer for an injunction in the ruling of 13. 11. 2017.
6. As rightly submitted by the plaintiff, defendant should participate in the hearing of this case and if dissatisfied with the outcome, he can lodge an appeal. As at now defendant is proceeding as if there are adverse orders in place against him, which is not the position as far as this suit is concerned.
7. I find that the application of 13. 7.2018 is not merited. The same is dismissed with costs to plaintiff. Parties should ensure compliance with Order II and then the suit is to be set down for hearing.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 31ST DAY OF OCTOBER, 2018 IN THE PRESENCE OF:-
Court Assistant: Janet/Galgalo
C. P Mbaabu for plaintiff
Mwanzia for defendant
Plaintiff
Defendant
HON. LUCY. N. MBUGUA
ELC JUDGE