[2007] KEHC 2633 (KLR)
The court found that the appellant's advocate was legitimately engaged in another court and had taken reasonable steps to notify both the respondent and the court of her unavailability. The refusal by the trial magistrate to grant an adjournment in these circumstances was unjustified. The court exercised its...
Source-derived case information.
- Citation
- [2007] KEHC 2633 (KLR)
- Parties
- Appellant: Karirana Estate Ltd; Respondent: Kefa Oseko Orenge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 495 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application for stay of proceedings allowed
- Judges
- JL Osiemo
- Legal Topics
- Stay of Proceedings, Adjournment, Exercise of Discretion, Appeals, Magistrates Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Karirana Estate Ltd
Appellant
Kefa Oseko Orenge
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of proceedings in the lower court pending the hearing and determination of the appeal.
- 2 Whether the refusal to grant an adjournment by the trial magistrate was justified in the circumstances.
Ratio Decidendi
The court found that the appellant's advocate was legitimately engaged in another court and had taken reasonable steps to notify both the respondent and the court of her unavailability. The refusal by the trial magistrate to grant an adjournment in these circumstances was unjustified. The court exercised its discretion to grant a stay of proceedings, finding that the appeal was arguable and that failure to grant a stay would render the appeal nugatory. Therefore, the application for stay was allowed, and further proceedings in the lower court were stayed pending the determination of the appeal.
Court Disposition
application for stay of proceedings allowed
Orders
- Further proceedings in Limuru SRM’s CC NO. 420 OF 2004 are stayed pending the hearing and determination of Civil Appeal No.495 of 2007.
- Costs of this application will be costs in the Appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL 495 OF 2007
KARIRANA ESTATE LTD………………………....APPELLANT
VERSUS
KEFA OSEKO ORENGE………………….……RESPONDENT
RULING
This is an application by the Appellant brought under Order XLI Rule 4 of the Civil Procedure Rules and Section 3A and 63(e) of the Civil Procedure Act seeking orders for stay of proceedings in Limuru Senior Resident Magistrate’s Court in Civil Case No.420 of 2004 pending the hearing and determination of the Appeal. The application is based on the grounds as stated on the body of the application as well as the affidavit sworn by Job Kihara on 11th June 2007.
Briefly the facts of this case as gathered from the affidavits are that the suit being SRMCC NO. 420 OF 2004 was scheduled for defence hearing on 5th June 2007 but Mrs. Maureen Onyango who was seized with the matter was summoned to appear before the Court of Appeal for the hearing of NAIROBI CIVIL APPEAL NO. 139 OF 2006 – REPUBLIC & ANOTHER VS. THE INDUSTRIAL COURT & ANOTHER.
On 30th May 2007 Mrs. Onyango wrote a letter to Omosa & Co. Advocates informing them that the hearing will not proceed as scheduled as she was engaged in the Court of Appeal and in the circumstances she would apply for adjournment. The letter was copied to the Executive Officer Limuru Law Courts.
But when the matter came up for hearing, application for adjournment was opposed and the trial magistrate refused to grant the adjournment and hence this appeal.
It is the discretion of the court to grant or refused a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. The Applicant having been summoned to appear before the Court of Appeal and having taken trouble to write counsel for the Respondent and copied to court; that she would not be available, her application for adjournment ought not to have refused.
I am satisfied that the appeal is an arguable one and the appeal would be rendered nugatory if the order of stay is not granted.
Accordingly the Applicant’s Notice of Motion dated 11th June 2007 is allowed and further proceedings in Limuru SRM’s CC NO. 420 OF 2004 are stayed pending the hearing and determination of Civil Appeal No.495 of 2007.
Costs of this application will be costs in the Appeal.
Dated and delivered at Nairobi this 25th day of June 2007.
J.L.A. OSIEMO
JUDGE