[2014] KEHC 1410 (KLR)
The court found that the issue of jurisdiction is central and fundamental to the proceedings. Since the applicants have exercised their right to appeal the court's ruling on jurisdiction, and given that proceeding with the matter could render the appeal nugatory, the court held that it is just and prudent to grant a...
Source-derived case information.
- Citation
- [2014] KEHC 1410 (KLR)
- Parties
- Applicant: Priyat Shah; Applicant: Mona Shah; Respondent: Mukesh Manchand Shah; Respondent: Harish Raichand Shah
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 37 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- Application for stay of proceedings pending appeal allowed.
- Judges
- JV Juma
- Legal Topics
- Stay of Proceedings, Jurisdiction of High Court, Preliminary Objection, Appeal Process
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Priyat Shah
Applicant
Mona Shah
Applicant
Mukesh Manchand Shah
Respondent
Harish Raichand Shah
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of proceedings pending the determination of an appeal on the issue of jurisdiction.
- 2 Whether the appeal on jurisdiction would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that the issue of jurisdiction is central and fundamental to the proceedings. Since the applicants have exercised their right to appeal the court's ruling on jurisdiction, and given that proceeding with the matter could render the appeal nugatory, the court held that it is just and prudent to grant a stay of proceedings pending the determination of the appeal. The court emphasized that jurisdiction is everything, and without it, the court cannot take any further steps. Therefore, to preserve the integrity of the appellate process and avoid prejudicing the applicants' right of appeal, the stay was granted.
Court Disposition
Application for stay of proceedings pending appeal allowed.
Orders
- All proceedings in this suit are stayed pending the hearing and determination of the appeal filed by the respondents against the ruling delivered on 23rd July, 2014.
- Costs of the application will be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 37 OF 2013 (OS)
IN THE MATTER OF CHANDRAKANT DEVCHAND MEGHJI SHAH (DECEASED)
PRIYAT SHAH AND MONA SHAH…….......... EX-PARTE APLICANTS
AND
1. MUKESH MANCHAND SHAH
2. HARISH RAICHAND SHAH……………….………..RESPONDENTS
RULING
Before court is the Notice of Motion dated 4th August, 2014. The Appellant/Applicant seeks inter alia orders that:
“(1) (c) After the said inter-partes hearing [of the application] to order that all proceedings in this suit be stayed pending the hearing and determination of the appeal filed by the respondents against the whole of the ruling made by the Honourable Lady Justice Maureen Odero delivered on 23rd July, 2014.
(2) THAT costs of this application be provided
for.”
On 6th August, 2014 the court granted interim orders of stay. The application was argued inter-partes on 30th October, 2014. MR. MARU Advocate appeared for the applicant whilst MR. ABEID represented the respondent.
The appeal arises from the ruling of this court delivered on 23rd July, 2014. By that ruling I did dismiss the Preliminary Objection dated 18th February, 2014 by which the applicants had submitted that the High Court had no jurisdiction to entertain the Originating Summons dated 19th September, 2013. Being dissatisfied with my ruling on that Preliminary Objection the applicants have filed an appeal.
I have carefully considered the submissions made by both counsel on the question of stay. I am mindful of the fact that the question of jurisdiction is one which goes to the very root of any matter. Without jurisdiction a court cannot take one more step. Jurisdiction as they say is everything. The applicants are challenging the jurisdiction of the High Court to entertain, hear and determine the Originating Summons dated 19th September, 2013. As a court I have made my decision on that point. The applicant has exercised his right to appeal. Given the subject matter of the intended appeal being jurisdiction, I am inclined to allow the stay so as not to render said appeal nugatory. As such I do allow the prayer for stay pending appeal in terms of prayer 1(c) of this Notice of Motion and direct that costs will be in the cause.
Dated and Delivered in Mombasa this 28th day of November, 2014.
M. ODERO
JUDGE
In the presence of:
No Appearance by either party
Court Clerk Mutisya