[2007] KEHC 2262 (KLR)
The court found that if the proceedings in the lower court were to continue and the appeal later succeeded, the appellant would be prejudiced by being forced to proceed on the basis of a defence that he contends is inadequate. The court considered that while granting a stay would delay the disposal of the lower...
Source-derived case information.
- Citation
- [2007] KEHC 2262 (KLR)
- Parties
- Appellant: Mathews Kandie & 2 Others; Respondent: Esther Jepkemboi Kiplagat
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 147 of 2006
- Procedural Posture
- Civil Appeal / Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed, conditional on deposit of security for costs.
- Judges
- K Bauni
- Legal Topics
- Stay of Proceedings, Leave to Amend Pleadings, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathews Kandie & 2 Others
Appellant
Esther Jepkemboi Kiplagat
Respondent
Procedural Posture
Civil Appeal / 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 determination of the appeal.
- 2 Whether failure to allow amendment of defence would prejudice the appellant if proceedings continue.
- 3 Whether security for costs should be ordered as a condition for stay.
Ratio Decidendi
The court found that if the proceedings in the lower court were to continue and the appeal later succeeded, the appellant would be prejudiced by being forced to proceed on the basis of a defence that he contends is inadequate. The court considered that while granting a stay would delay the disposal of the lower court case, this was a lesser evil compared to the potential prejudice to the appellant. Accordingly, the court exercised its discretion to grant a stay of proceedings, conditional upon the appellant depositing KES 30,000 as security for costs within 30 days.
Court Disposition
Application for stay of proceedings allowed, conditional on deposit of security for costs.
Orders
- There shall be a stay of proceedings in Eldoret SPM.CC.No.1497 of 1998 pending the hearing and determination of this appeal.
- The appellant shall deposit KES 30,000 in court within 30 days as security for costs of the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Appeal 147 of 2006
MATHEWS KANDIE & 2 OTHERS:......................APPELLANT
VERSUS
ESTHER JEPKEMBOI KIPLAGAT:.................RESPONDENT
RULING
The applicant/appellant seeks for an order staying proceedings in Eldoret SPM.CC.No.1477 OF 1998 pending the hearing and determination of this suit.
Respondent and council did not appear today for the hearing though the date was taken by consent. Mr. Otieno told court that he is relying on the supporting affidavit.
I have considered the application and the supporting affidavit. I too considered the respondents grounds of apposition filed. I find application has merit. The applicant says he was aggrieved by the Principal Magistrate dismissed of his application for leave to amend his defence. He has already filed the appeal. If the proceedings in the lower court continues and this court after hearing the appeal finds the Magistrate erred is not allowing the amendment then no doubt the appellant/applicant who is the defendant in that suit will be prejudiced as he will be forced to proceed on the basis of the defence now on record. this appeal means the disposal of the lower courts case will now be delayed but that is lesser evil then forcing the appellants to proceed when he feels that his pleadings are not proper.
I therefore allow the application and order that there be stay of proceedings in Eldoret SPM.CC.No.1497 of 1998 pending the hearing and determination of this appeal on condition that the appellant do deposit in court within 30 days Shs.30,000/= as security to costs of the appeal.
Costs of the application in the cause.
Dated and Delivered at Eldoret on 12th June,2007.
KABURU BAUNI
JUDGE
DELIVERED IN THE PRESENCE OF:-
C/C - David
N/A for Applicant
N/A for Respondent