[2022] KEHC 2406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. APPLICATION NO. E460 OF 2021

DR.MATUNDA NYANCHAMA GEORGE……………………APPLICANT

-VERSUS-

DR.NYAGENYA ISABOKE MANIGA…….………….….…RESPONDENT

RULING

1. The Applicant brought the Notice of Motion dated 1st December, 2021 supported by the grounds presented on its face and the facts stated in the affidavit of advocate Ms. Mokeira Repha.The appellants sought for a stay of all proceedings in Milimani CMCC NO. E591 of 2020 pending the hearing and determination of the appeal.

2. The respondent put in a replying affidavit sworn by advocate Dr.Nyangenya Isaboke Maniga dated 26th January, 2022, to oppose the Motion.

3. The instant Motion was canvassed through oral arguments whereby the parties’ respective advocates chose to rely on the averments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the Motion, the facts deponed in the affidavits supporting and opposing the Motion and the brief oral arguments.

5. A brief background of the matter as set out by the parties is that the Respondent instituted a suit against the Applicant vide the plaint dated 10th September, 2020. The gist of the suit is that a loan taken by the Appellant/Applicant from the Respondent back in 2013 and the Applicant kept promising to pay and kept acknowledging the debts which were sent via email and WhatsApp.

6. Upon the filing of the suit, the appellant filed a preliminary objection arguing that the suit was time barred and should be dismissed. The trial court heard the preliminary and held that the Preliminary Objection is not merited. Being aggrieved by the aforementioned decision the applicant preferred this appeal to challenge the ruling of the lower court ruling.

7. The granting of a stay of proceedings is purely a matter of judicial discretion. The principles surrounding the granting of an order for stay of proceedings were aptly discussed by the court in the case of William Kamunge & 2 others v Muriuki Mbithi [2016] eKLR:

“…it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”

8. The first principle concerns whether the application has been expeditiously filed. The parties are in agreement that the impugned ruling was delivered on 12th July, 2021 which is close (4) four months prior to the filing of the Motion. The Applicant stated that Application has been made without reasonable delay. In reply, the respondent states that there has been an inordinate delay in bringing the instant Motion and that the Appellant/Applicant is to blame since they have been seeking adjournments which have delayed delivery of justice.

9. It is apparent from the record that there was a considerable and unexplained delay in filing the application for stay of proceedings. In the circumstances, and in the absence of any reasons to justify the delay, I find the delay to be inordinate.

10. The second principle concerns itself with whether the applicant has an arguable appeal with reasonable chances of success. The appellants are of the view that their appeal raises arguable grounds and has high chances of success. On the other hand the respondent stated that the Applicant’s Appeal raises no arguable case and has no prima facie chance of success since the trial court only deferred the matter of limitation to a later date pending the hearing of the suit.

11. In my view, I am satisfied that the appellant has demonstrated that the appeal raises prima facie arguable points of law. However it would appear the issue was left to be determined during the hearing of the suit. In any case the issue can still be determined on the appeal filed after the substantive hearing of the suit.

12. The third principle touches on the interest of justice vis-à-vis the subject of prejudice, the appellant stated that she if the matter proceeds to hearing and judgment thereafter it will be detrimental to her as well as the whole substratum of the Appeal will be destroyed and the Appeal rendered nugatory if stay is not granted.

13. I don’t think the appeal will be rendered nugatory if the order for stay is denied. The appellant will not suffer any prejudice since he still has a chance to challenge the decision on appeal. To stay proceedings will be more prejudious to the parties in that there will be a long delay in having he mater heard and concluded.

14. In the end, I find the Motion dated 1st December, 2021 to be without merit. The same is dismissed with costs abiding the outcome of this appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 11th day of February, 2022.

..............................

J. K. SERGON

JUDGE

In the presence of:

................................................for the 1st and Applicant

................................................for the Respondent