[2016] KEHC 602 (KLR)
The court found that the applicant failed to demonstrate any prejudice that would be suffered if the lower court proceedings continued. The applicant retains the right to present his case and arguments during the hearing of the main suit in the lower court. The court was not persuaded that the circumstances...
Source-derived case information.
- Citation
- [2016] KEHC 602 (KLR)
- Parties
- Applicant: James Mutuku Musau; Respondent: Michael Kamula Mbondo (suing as the legal representative of the estate of Eunice Mumbua Michael – deceased)
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 68 of 2016
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- DO Ogembo
- Legal Topics
- Stay of Proceedings, Appeal Process, Striking Out Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mutuku Musau
Applicant
Michael Kamula Mbondo (suing as the legal representative of the estate of Eunice Mumbua Michael – deceased)
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of proceedings in the lower court pending the hearing and determination of the appeal.
- 2 Whether the applicant will suffer prejudice if the stay is not granted.
- 3 Whether the application for stay is frivolous, vexatious, or an abuse of court process.
Ratio Decidendi
The court found that the applicant failed to demonstrate any prejudice that would be suffered if the lower court proceedings continued. The applicant retains the right to present his case and arguments during the hearing of the main suit in the lower court. The court was not persuaded that the circumstances justified the grant of a stay of proceedings, and determined that the application was not meritorious. The interests of justice and the need for expeditious disposal of cases outweighed the applicant's request for a stay. Consequently, the application for stay of proceedings was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of proceedings is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL SUIT NO. 68 OF 2016
JAMES MUTUKU MUSAU ………………………………………….......…….APPLICANT
VERSUS
MICHAEL KAMULA MBONDO (SUING AS THE LEGAL REPRESENTATIVE OF THE
ESTATE OFEUNICE MUMBUA MICHAEL– DECEASED) ………………RESPONDENT
RULING OF THE COURT
1. The Notice of Motion application before the court is dated 18th October, 2016. It seeks the following orders:
a. That the matter be certified as urgent and be heard exparte in the first instance.
b. That this court be pleased to stay proceedings pending appeal from the decision of the Resident Magistrate in Kilungu Resident Magistrate’s Court Civil Case No. 90 of 2014 Michael Kamula Mbondo & another versus James Mutuku Musau & another made on 28th June, 2016.
c. Costs do abide the application.
2. The application is premised on the grounds set out therein and is supported by affidavit of James Mutuku Musau sworn on 18th October, 2016. The applicant’s case is that the applicant made an application for striking off his name from the suit. By a ruling dated 28th June, 2016 the trial court dismissed the applicant’s application. The applicant is aggrieved by the decision, and has lodged the appeal. The said appeal is alleged to be meritious with high chances of success. The Lower Court matter is slated for hearing on 4th November, 2016. (now past) and it is fair that proceedings be stayed.
3. The application is opposed by the respondent vide a replying affidavit sworn by Andrew Makundi, counsel for the respondent. The respondent’s case is that the application dated 18th October, 2016 is bad in law and is intended to delay justice. The issues raised in this application and the appeal filed by the applicant herein can be well canvassed and ventilated in PMCC. No. 90/2014 Kilungu. The respondent’s case is that the applicant herein can lead evidence during the hearing which is scheduled on 4th November, 2016 on the issues raised in this application and the appeal. If those orders are granted, the respondent will be occasioned great prejudice. The applicant will not be occasioned with any prejudice if the same is not allowed. Mr. Makundi submitted that the application is frivolous, vexatious and a gross abuse of the court process as it is raised to delay the determination of PMCC NO. 90 of 2014 and ought to be dismissed with costs as indeed it is not an expeditious use of both the court’s time and that of the parties and great injustice will result if stay orders are granted taking into account the workload of the High Court.
4. The application was heard inter partes on 3rd November, 2016when the court declined to issue any interim orders and reserved the ruling for 22nd September, 2016.
5. After carefully considering the application and submissions of the parties this court finds that there is no prejudice to be suffered by the applicant if the case proceeds in the lower court, since the applicant can still urge his views in the hearing of the main suit.
6. The application is dismissed with costs to the respondent.
DATED AND DELIVERED AT MACHAKOS THIS 22ND DAY OF NOVEMBER, 2016.
E. OGOLA
JUDGE
In the presence of;
Mr. Kanui holding brief for Tamata for applicant
M/S Ombega holding brief for Makundi for Respondent
Court Assistant – Mr. Munyao