[2015] KEHC 4970 (KLR)
The court found that while the application for stay would ordinarily be disposed of in the trial court, the unavailability of the lower court file made it impossible for the applicant to prosecute the application there. In the interest of justice and in line with the overriding objectives set out in Sections 1A and...
Source-derived case information.
- Citation
- [2015] KEHC 4970 (KLR)
- Parties
- Appellant: Jubilee Insurance Company Ltd; Respondent: Walter Tondo Soita
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 2014
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal; Ruling on Preliminary Objection
- Outcome
- Temporary stay extended pending determination of the application in the lower court; lower court directed to set hearing date.
- Legal Topics
- Stay of Proceedings, Preliminary Objection, Reopening of Case, Section 6 Civil Procedure Act, Order 42 Rule 6, Overriding Objective
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jubilee Insurance Company Ltd
Appellant
Walter Tondo Soita
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal; Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for stay offends Section 6 of the Civil Procedure Act.
- 2 Whether the application for stay offends Order 42 rule 6(1) of the Civil Procedure Rules.
- 3 Whether the High Court can entertain the application for stay when a similar application is pending in the lower court and the file is unavailable.
Ratio Decidendi
The court found that while the application for stay would ordinarily be disposed of in the trial court, the unavailability of the lower court file made it impossible for the applicant to prosecute the application there. In the interest of justice and in line with the overriding objectives set out in Sections 1A and 1B of the Civil Procedure Act, the court held that it would be unjust to dismiss the application on a technicality. The court therefore extended the temporary stay pending the determination of the application in the lower court and directed the lower court to set a hearing date for the pending application. The parties were granted liberty to seek further orders as necessary.
Court Disposition
Temporary stay extended pending determination of the application in the lower court; lower court directed to set hearing date.
Orders
- Temporary stay issued herein is extended pending hearing and determination of the application in the lower court.
- The lower court is directed to give a date for hearing the pending application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. 84 OF 2014
JUBILEE INSURANCE COMPANY LTD …...................................... APPELLANT
VERSUS
WALTER TONDO SOITA ............................................................. RESPONDENT
[Being an appeal from Bungoma CMCC case No. 832 of 2010]
RULING
The applicant aggrieved by the order of the trial court in CMCC No. 832 of 2010 issued on 27. 06. 14 to close its defence case and desirous of calling witnesses, filed an application on the 8th of July 2014 before the same court seeking to re-open it’s case. The said application was dismissed.
On the 8th October 2014, the applicant lodged an application under certificate of urgency in the lower court seeking for stay pending appeal. However between October, 2014 and February 2015, the lower court file could not be traced necessitating the application filed before this court for stay of the lower court proceedings pending hearing and determination of the appeal dated 8th March 2015.
It is the application dated 5th March, 2015 that triggered the preliminary objection on the respondent dated 10th March, 2015, on the following points
The application offends Section 6 of the Civil Procedure Act.
The application offends Order 42 rule 6 (1) of the Civil Procedure Code.
Section 6 does not allow a second court to determine a matter already in issue before another court, whereas Order 42 rule 6 (1) allows an application to be filed to the court where the appeal has been lodged.
All things remaining constant (read the file being available) the application before the trial court ought to have been disposed of first.
However the court file was not available, and in the circumstance and desperate the applicant came to this court. It will be against the overriding principles as set in section 1 A and B and equally against Section 3A to dismiss the application on such a technicality.
Agreeing that this court should first wait the outcome of the earlier application and in the interest of justice I will extend the temporary stay issued herein pending herein and determination of the application in the lower court and direct the said court to give a date for hearing the pending application.
The parties be at liberty to seek further orders.
Dated at Bungoma this 5th day of May 2015.
ALI-ARONI
JUDGE.