[2021] KEHC 8706 (KLR)
The court found that the applicant had acted in bad faith by waiting until three days before the hearing date to bring the application for stay and leave to appeal out of time, despite the ruling being delivered over three months prior. The delay in serving the application, despite available electronic means,...
Source-derived case information.
- Citation
- [2021] KEHC 8706 (KLR)
- Parties
- Applicant: The Guardian Coach Ltd; Respondent: POB & LKM (Minor suing as personal & Legal Representative of the estate of DBO (Deceased))
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case E4 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay and Leave to Appeal Out of Time
- Outcome
- Application for stay of proceedings dismissed; directions given for filing submissions on leave to appeal out of time.
- Judges
- EM Muchoki
- Legal Topics
- Leave to Appeal Out of Time, Stay of Proceedings, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Guardian Coach Ltd
Applicant
POB & LKM (Minor suing as personal & Legal Representative of the estate of DBO (Deceased))
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to an order for stay of proceedings in the lower court pending determination of the application for leave to appeal out of time.
- 2 Whether the applicant should be granted leave to appeal out of time against the trial court's refusal to allow filing of further witness statements.
Ratio Decidendi
The court found that the applicant had acted in bad faith by waiting until three days before the hearing date to bring the application for stay and leave to appeal out of time, despite the ruling being delivered over three months prior. The delay in serving the application, despite available electronic means, further demonstrated indolence and abuse of court process. The court held that granting a stay would unjustifiably scuttle the lower court proceedings and aid an undeserving party. Consequently, the application for stay was denied. The court directed that the application for leave to appeal out of time be canvassed by written submissions within seven days, with mention for directions...
Court Disposition
Application for stay of proceedings dismissed; directions given for filing submissions on leave to appeal out of time.
Orders
- There shall be no order for stay of proceedings in the lower court.
- Counsel shall file written submissions on the application for leave to appeal out of time within seven days.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
MISC. CIVIL CASE NO. E004 OF 2021
THE GUARDIAN COACH LTD.......................................................................APPLICANT
VERSUS
POB & LKM (Minor suing as personal & Legal Representative of the estate of
DBO (DECEASED).....................................................................................RESPONDENTS
RULING
This ruling pertains to the Notice of Motion dated 23rd February 2021 filed herein on 22nd February 2021. On the main the application seeks leave to appeal the decision/order of the trial court which refused the applicant leave to file further witness statements. The decision/order intended to be appealed was delivered on 27th October 2020 and leave is sought to appeal out of time. Counsel for the applicant proposed and Counsel for the respondents did not oppose that the said application may be canvassed by way of written submissions. He however opposed that the proceedings in the lower court should be stayed pending hearing and determination of the application. I agree with him that such a stay would scuttle the proceedings in the lower court. It is unfathomable that Counsel for the applicant would wait until three days to the hearing date to bring this application. The application is clearly made in bad faith the ruling of the court having been delivered well over three months ago. To allow the application for stay of the proceedings would be tantamount to aiding a party whose sole intention is to abuse the court process. This abuse is also demonstrated by the fact that whereas the order to serve the application was made on 24th February 2021 the service in this supposedly very urgent application was not effected until very late on Sunday 29th February 2021. This despite there being rules allowing service of documents electronically. The applicant is an indolent party who is not deserving of an order for stay of the proceedings in the lower court. In the premises there shall be no order for stay.
As for the application for leave to appeal out of time Counsel shall file written submissions within seven days and come for mention on 11th March 2021 for this court to give them a date for ruling. Costs shall abide the ruling in the main application. It is so ordered.
RULING SIGNED, DATED AND DELIVERED ELECTRONICALLY AT 2. 15PM ON THIS 1ST DAY OF MARCH 2021.
E. N. MAINA
JUDGE