[2021] KEHC 9239 (KLR)
The court found that the issue of jurisdiction raised by the appellant is central and not frivolous, as it goes to the root of the matter in CM Misc. 369 of 2019. Since the Energy Act provides for the Energy & Petroleum Tribunal to hear such disputes in the first instance, there is a legitimate question as to...
Source-derived case information.
- Citation
- [2021] KEHC 9239 (KLR)
- Parties
- Appellant: Kenya Power & Lighting Co. Ltd; Respondent: Michael Barasa Mangeni; Respondent: Fatuma Mohammed Abdi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 15 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Stay of Proceedings Pending Appeal
- Outcome
- application for stay of proceedings allowed
- Judges
- SN Riechi
- Legal Topics
- Stay of Proceedings, Jurisdiction of Magistrates Court, Energy Act Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Power & Lighting Co. Ltd
Appellant
Michael Barasa Mangeni
Respondent
Fatuma Mohammed Abdi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the magistrates court has jurisdiction to hear and determine the application in CM Misc. 369 of 2019 arising from the Energy Act.
- 2 Whether a stay of proceedings should be granted pending the hearing and determination of the appeal.
Ratio Decidendi
The court found that the issue of jurisdiction raised by the appellant is central and not frivolous, as it goes to the root of the matter in CM Misc. 369 of 2019. Since the Energy Act provides for the Energy & Petroleum Tribunal to hear such disputes in the first instance, there is a legitimate question as to whether the magistrates court can proceed. Granting a stay of proceedings is necessary to preserve the subject matter of the appeal and prevent the appeal from being rendered nugatory. The court therefore allowed the application for stay, ordering that proceedings in the lower court be stayed pending the hearing and determination of the appeal, with a time limit of 90 days for the...
Court Disposition
application for stay of proceedings allowed
Orders
- Stay of proceedings in Bungoma CMCC Misc 369 of 2019 granted until the appeal is heard and finalized.
- The intended appeal to be heard and finalized within 90 days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
AT THE HIGH COURT OF KENYA IN BUNGOMA
CIVIL APPEAL NO. 15 OF 2020
KENYA POWER & LIGHTINING CO. LTD................................APPELLANT
VERSUS
MICHAEL BARASA MANGENI.........................................1ST RESPONDENT
FATUMA MOHAMMED ABDI...........................................2ND RESPONDENT
RULING
This is an application by way of Notice of Motion dated 20. 2.2020 by the appellant Kenya Power & Lighting Co. Ltd seeking orders:
1. That this Honourable Court be pleased to issue an order for stay of proceedings herein pending the hearing and determination of this application.
2. That this Honourable court be pleased to issue an order for stay of proceedings herein pending the hearing and final determination of the appeal against the ruling of the Hon. J.G King’ori delivered on 2nd January, 2020.
The grounds for the application are that:
1. That the Appellant is aggrieved by the ruling of the Honourable J.G King’ori delivered on 2nd January, 2020 and the order issued thereto and has lodged an appeal.
2. That the Respondent’s application dated 8th November, 2019 was heard on 21st January, 2020 and the same was set down for ruling on 11th February, 2020 on which date the court was not sitting.
3. That should the proceedings in Miscellaneous 369 of 2019 not be stayed, the Hon. J.G King’ori will proceed to make a final determination on the Respondent’s application thus rendered this appeal nugatory.
4. That the Appellant will be greatly prejudiced should this matter proceed in the form in which it is now since the issue of jurisdiction raised by the Appellant and which is the basis of the appeal goes to the substratum of the Respondent’s application dated 8th November, 2019.
Both parties have filed submissions in support of their positons. I have also perused the impugned ruling by Hon. King’ori CM annexed to the application. The main issue in this application is the applicant’s contention that the chief magistrates court has no jurisdiction to hear and determine the issues in CM Misc. application NO. 369 of 2019 as the issues therein arise from the Energy Act which should first be heard by the Energy & Petroleum Tribunal established under the Energy Act.
As the issue is on whether the magistrates court has jurisdiction to hear and determine the application as ruled by the Hon. Magistrate, and challenged by the appellant, I find that the intended appeal is not frivolous. I therefore allow the application and order stay of proceedings in Bungoma CMCC Misc 369 of 2019 until the appeal is heard and finalized. The intended appeal be heard and finalized within 90 days. If an appeal is not heard and finalized within the 90 days from date of this ruling the orders of stay issued will lapse on the last day.
Dated and delivered at Bungoma this 11th day of February, 2021.
S.N RIECHI
JUDGE