[2018] KEELC 1231 (KLR)
The court found that the applicant failed to establish a clear connection between the present suit and the previous suit (ELC No. 19 of 2017) sufficient to warrant a stay of proceedings. While the parties and subject matter may appear similar, the evidence presented did not conclusively demonstrate that the matters...
Source-derived case information.
- Citation
- [2018] KEELC 1231 (KLR)
- Parties
- Plaintiff: Felista Kaveza Omani; Defendant: Emmanuel Isadia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 316 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Stay of Proceedings, Sub Judice Principle, Appeals, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felista Kaveza Omani
Plaintiff
Emmanuel Isadia
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the suit should be stayed pending the hearing and determination of the intended appeal in the Court of Appeal.
- 2 Whether the subject matter and parties in the present suit and the previous suit are the same, warranting application of the sub judice rule.
Ratio Decidendi
The court found that the applicant failed to establish a clear connection between the present suit and the previous suit (ELC No. 19 of 2017) sufficient to warrant a stay of proceedings. While the parties and subject matter may appear similar, the evidence presented did not conclusively demonstrate that the matters are directly and substantially the same or that the sub judice rule applies. The court held that the application for stay lacked merit as the requirements for stay under Section 6 of the Civil Procedure Act were not satisfied. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO 316 OF 2017
FELISTA KAVEZA OMANI ................. PLAINTIFF/RESPONDENT
VERSUS
EMMANUEL ISADIA ........................... DEFENDANT/APPLICANT
RULING
The application is dated 19th June 2018 and is brought under sections 1A, 1B, 3, 3A and 6 of the Civil Procedure Act seeking the following orders;
1. That the suit herein be stayed pending the hearing and determination of the intended appeal in the Court of Appeal arising from the decision of this court in Kakamega High Court, ELC No. 19 of 2017.
2. That the cost of this application be provided for.
It is grounded upon the annexed affidavit of Emmanuel Isadia Kimata, the grounds below and the grounds that, the subject matter herein is the same as the one in Kakamega ELC No. 179 of 2017 being L.R. No. South Maragoli/Kegoye/656. This court pronounced ruling in ELC No. 19 of 2017, which ruling the applicant has preferred an appeal.The appeal in the Court of Appeal has been instituted.The parties herein are the same.
The applicant submitted that, the deceased, Raphael Chasimba, had prior to his death instituted Kakamega ELC No. 19 of 2017 against Christina Savai, also deceased and substituted by the respondent herein.That the court made a ruling on 27/6/2018, which ruling he has filed an appeal. (Annexed and marked EK1 is a photostat copy of the notice of appeal.That the subject matter and parties herein are the same.That since the intended appeal has not been heard and determine, it is proper that the matter herein be stayed as the decision of the court of appeal will have an impact on the outcome of this suit.That to avoid conflicting decisions it is proper that the case be stayed.
The respondent submitted that.an appeal does not ipso facto operate as a stay of proceedings of a court.That the issues for determination in the instant case vary from the issues in determination in case No. Kakamega ELC 19 of 2017. That furthermore, there has never been a trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties to necessitate a stay of proceedings. That that section 6 of the Civil Procedure Act as relied on by the applicant is designed to prevent courts of parties concurrent jurisdiction from simultaneously adjudicating on a suit with the same parties and the same matter which is not the case between ELC 19/2017 and the instant case which prays for a permanent injunction among others.That counsel for the applicant is simply using the stay of proceedings as a means to negate justice and delay the inevitable.
This court has carefully considered the application and the submissions therein. From the facts adduced before me it is not clear what connection there exists between the two matters to warrant a stay of the present one. Indeed if the parties are the same and the subject matter then it would appear this matter is sub judice. The same can only be established once this matter is heard or the parties produce more evidence. At this point I find this application has no merit and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 16TH DAY OF OCTOBER 2018.
N.A. MATHEKA
JUDGE