[2024] KEHC 15278 (KLR)

Kaur t/a Kavraj Kaur & Associates v Kumar (Civil Appeal E031 of 2024) [2024] KEHC 15278 (KLR) (27 November 2024) (Ruling)

Neutral citation: [2024] KEHC 15278 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E031 of 2024

PN Gichohi, J

November 27, 2024

Between

Kavraj Kaur t/a Kavraj Kaur & Associates

Appellant

and

Pradeep Kumar

Respondent

Ruling

1. Under a certificate of urgency, the Appellant/Applicant filed a Notice of Motion dated 6/3/2024 invoking Sections 1A, 1B and 3A. 63 (e) of the Civil Procedure Act and Order 40 Rule 4 and Order 42 Rule 6 of the Civil Procedure Rules seeking orders that: -1. Spent.2. Spent.3. Stay of further proceedings in Nakuru Chief Magistrate’s Court Case No. E158 OF 2023 pending the hearing and determination of the the intended appeal.4. Cost of this Application be provided for.

2. The grounds on the face of the application and supported by the affidavit sworn by Kavraj Kaur are that before the trial court, the Respondent herein sued the Appellant for recovery of rental monies that the Appellant collected on behalf of its client from properties owned by the Respondent and the Appellant’s client who is the mother to the Respondent.

3. The Appellant states that she was duly served with summons to enter appearance on 24th March 2023 but since then, her client and the Respondent embarked on negotiations in an attempt to settle the matter out of court reasons being the issue was a family matter. That as result, the Appellant was on the impression that the matter could be settled out of court and therefore, the Appellant did not file its defence on time and the matter was set down for formal proof hearing.

4. The Appellant further states that she was going through the cause list dated 28th August 2023 for another matter before another court when she realised that this matter was also cause-listed. That it was then that she tried to log in to the court but realised that the matter had already been called out which prompted her to peruse the court file for purposes of checking the status.

5. It is the Appellant’s averment that with great disappointment and concern, she realised that unknown to her or her advocates, the Respondent had proceeded with the matter, had been in court severally over the said matter, and that the matter had been set down for formal proof hearing on the 12th February 2024.

6. The Appellant further states that she immediately instructed the firm of Wachira Wekhomba AIM & Associates Advocates to file an application seeking to file a statement of defence out of time and which was done on 25th September 2023. However, that application was dismissed with costs vide a ruling delivered on 7th February 2024

7. It is the Appellant’s contention that her appeal raises fundamental legal issues on her right to be heard and if this application is not allowed, the appeal will be rendered nugatory. She therefore urged the court to allow this application

8. Upon being served, the Respondent opposed the application vide a Replying Affidavit sworn by Pradeep and filed on 7th May 2024. He denied that there were any negotiations between the parties. He states that if there were any negotiations or indication of any such negotiations, then the same would be in the court record.

9. Further he states that there was no oversight on the part of the Appellant as she had been dully served with pleading and sermons to enter appearance for which she acknowledged receipt and therefore, the Respondent states that it is not true that the Appellant realised the matter on the cause list as she had been served with the date and acknowledged receipt.

10. It is their contention that Applicant/ Appellant has come to court with unclean hands and that the application herein is incompetent and based on distortion of facts and misrepresentation, frivolous and irrelevant matters. In the circumstances, he urges the court to dismiss with costs the application for being incompetent and an abuse of court process

Appellant’s Submissions 11. Through the firm of Wachira Wekhomba AIM & Associates Advocates, the Appellant filed submissions dated 28th June 2024 maintaining and emphasising the contents of their application and affidavit in support.

12. On whether an order of stay of further proceedings should be granted as sought, the Appellant relied on provisions of Order 42 Rule 6(1) of the Civil Procedure Rules as highlighted in Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR where Mativo J (as he then was) that: -“Whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interests of justice. Such discretion is unlimited save that by virtue of its character as a judicial discretion; it should be exercised rationally and not capriciously or whimsically. The sole question is whether, it is in the interests of justice to order a stay of proceedings, and if it is, on what terms it should be granted.”

13. Further, they cited the case of case of William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR, where High Court set out six principles in regard to such an application, that is:1. First, there must be an appeal pending before the higher Court;2. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;3. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;4. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;5. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and6. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without, delay-7. Existence of an appeal.

14. As to whether there is existence of appeal, the Appellant submitted that she filed memorandum of Appeal, further sought for certified copies of ruling and order to enable them compile a record of appeal and is keen to prosecute the appeal.

15. As to whether the appeal will be rendered nugatory if stay proceedings is not granted, they submitted that if the case before the trial court proceeds undefended, the Appellant shall be condemned unheard and the court will arrive at an erroneous decision with adverse effects of execution against the Appellant which could have been avoided had the Appellant been granted a chance to defend the suit.

16. As regards existence of special circumstances warranting stay of proceedings before the case is concluded, the Appellant submitted that she would suffer irreparable loss if condemned unheard over professional services rendered and executed on instructions and on behalf of a client who is a mother to the Respondent.

17. As to whether the application for stay was brought expeditiously, it was submitted that the impugned ruling was delivered on 7th February 2024. That the Appellant filed her Memorandum of Appeal and this application on 7th March 2024 which is a month from the said ruling which delay cannot be said to have been inordinate.

18. The Appellant therefore submitted that circumstances of this case warrant the court’s exercise of this Court’s discretion and grant stay of further proceedings to enable both parties ventilate the issues on merit. Lastly, the Appellant seeks costs of the Application.

19. On his part, the Respondent chose to rely on the Replying Affidavit and therefore did not file any submissions.

Determination 20. This Court has considered the application herein, the replying affidavit and the submissions by the Appellant, there are only two issues for determination are: -1. Whether this Court should grant an order for stay of the proceedings in Nakuru Chief Magistrate’s Court Case No. E158 OF 2023 pending the hearing and determination of the intended appeal.2. Who should be awarded costs of this application?

21. There is no doubt that the Appellant was served with summons to enter appearance together with pleadings to the suit before the trial court as proved by annexures to the Respondent’s Replying Affidavit. That is indeed admitted by the Appellant. The Summons issued by the court and served on the Appellant has timelines within which the Appellant herein was supposed to enter appearance.

22. In this application, the Appellant has not indicated whether she entered appearance or not but there is no dispute that the Appellant did not file a defence.

23. Having heard the reasons advanced by the Appellant for her failure to file defence, the Court has looked at the plaint annexed by the Respondent herein and noted that the Appellant is sued for rent she allegedly collected from two properties without proper authority from the legal proprietors.

24. The Appellant is accused of fraud. It is a serious claim against the Appellant who is not just any litigant but an Advocate of the High Court of Kenya practicing in the name and style described therein.

25. From those undisputed facts, parties were bound to take steps towards expeditious disposal of the matter. Indeed, Section 1A and 1B of the Civil Procedure Act which specifically provide that: -1A(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.1B.(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology.”

26. Having been duly served, the Appellant chose to ignore and take no steps towards expeditious disposal of this matter. There is nothing to show that as a litigant, the Appellant engaged the Respondent towards an out of court settlement. There was also no evidence of intimation to the trial court by Appellant herein on any negotiations whatsoever in regard to the said suit.

27. It is not the Respondent’s mother or any other person sued in that matter. Even if the Appellant tries to cling on such unproved negotiations taking place between the Respondent and his mother, the mother was not a party to the suit. Such negotiations would not absolve the Appellant from her duty as a litigant to file a defence to the claim and raise the issues she is now raising in this application.

28. It is the Appellant’s admission that the matter appeared before the trial court severally and that the Respondent did attend court as scheduled. That ultimately the matter was listed for formal proof.

29. There is no doubt the Appellant has duly filed a Memorandum of Appeal and has expeditiously filed this Notice of Motion. The Appellant’s argument is that she will suffer irreparable loss if condemned unheard over professional services rendered and executed on instructions of and on behalf of a client who is a mother to the Respondent. That those special circumstances warranting stay of proceedings before the case before the trial court is concluded. In that regard, this Court has considered the Memorandum of Appeal. The grounds are: -1. That the Learned Trial Magistrate erred in both law and fact failing to appreciate the basic Principles of Natural Justice.2. That the Learned Trial Magistrate erred in law and fact in failing to accord the Appellant a chance to defend suit on merit occasioning miscarriage of justice.3. That the Learned Trial Magistrate erred in law an in fact in condemning her unheard for an inadvertent mistake not beyond her control.4. That the Learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s evidence placed before her more particularly evidence of further non-service and ongoing out of court settlement.5. That the Learned Trial Magistrate erred in fact when she failed to consider the Appellant had meritable defence which raised serious triable issues thereby arriving at the wrong finding and conclusion.6. That the Learned Trial Magistrate did not exercise her judicial discretion properly in failing to allow the application and giving directions for ex-parte hearing despite the Appellant’s desire to defend the suit.

30. There is no mention of such special circumstances. Further, there is no annexure to the Appellant’s Affidavit in support of the Notice of Motion to show that she had a merited defence which the trial court failed to consider before dismissing the application before it but she has put it as a ground of appeal that she has a merited defence on serious issues to warrant him to defend the suit.

31. In such circumstances, this Court is alive to the Court of Appeal in Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR) (19 January 2024) (Ruling) that: -“An arguable appeal was not one that must succeed and an applicant need not proffer a multiplicity of arguable points. One was sufficient. For a point to be arguable it needed merely to raise a bona fide point of law or fact sufficient to call for an answer from the respondent and was worthy of the court’s consideration. Moreover, whereas such arguable points should ideally and conveniently be expressed in the form of a draft memorandum of appeal, there was no rule that it must be so. One could raise such grounds on the face of the motion and even in the supporting affidavit. The appeal was eminently arguable.”

32. This Court is also alive to the fact that stay of proceedings is a drastic measure and whether to grant or not to grant such an order is within the discretion the court. This Court is also alive to the Court of Appeal in the case of David Morton Silverstein vs Atsango Chesoni [2002] eKLR where it stated: -“The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the Court's own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts and the facts of this particular case before us, as were the facts in the earlier case, do not show that the appeal will be rendered nugatory if we do not grant a stay.”

33. In this case as earlier highlighted, the circumstances of this case do not at all demonstrate that the appeal herein will be rendered nugatory. There are no reasons for this court to exercise its discretion in her favour. The right to a fair and expeditious hearing is both ways and, in this case, it is drastic for the diligent Respondent herein not to be allowed to proceed case as scheduled.

34. In conclusion therefore: -1. The Appellant’s application dated 6th March 2024 is not only incompetent but also lacking in merit.2. It is dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 27TH DAY OF NOVEMBER, 2024. PATRICIA GICHOHIJUDGEIn the presence of:Ms Kimuge for ApplicantN/A for RespondentRuto, Court Assistant