[2023] KEELC 505 (KLR)
The court found that the applicant had not demonstrated sufficient grounds to warrant a stay of proceedings. The mere grant of leave by the Court of Appeal to file a notice of appeal out of time did not, in itself, justify halting the proceedings in the trial court. The court reiterated that the reasons for...
Source-derived case information.
- Citation
- [2023] KEELC 505 (KLR)
- Parties
- Plaintiff: Morop Distributors (K) Limited; Plaintiff: John Gathama Maingi; Defendant: Nairobi City County Government; Defendant: Job Kipnandi Chebon; Defendant: NK Brother; Defendant: Attorney General; Defendant: Step Ahead Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 178 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs to the 2nd plaintiff
- Judges
- LN Mbugua
- Legal Topics
- Stay of Proceedings, Leave to Appeal Out of Time, Amendment of Pleadings, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morop Distributors (K) Limited
Plaintiff
John Gathama Maingi
Plaintiff
Nairobi City County Government
Defendant
Job Kipnandi Chebon
Defendant
NK Brother
Defendant
Attorney General
Defendant
Step Ahead Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of proceedings pending the hearing and determination of an intended appeal.
- 2 Whether the grant of leave to appeal out of time by the Court of Appeal justifies a stay of proceedings in the trial court.
- 3 Whether the application for stay amounts to an abuse of the court process.
Ratio Decidendi
The court found that the applicant had not demonstrated sufficient grounds to warrant a stay of proceedings. The mere grant of leave by the Court of Appeal to file a notice of appeal out of time did not, in itself, justify halting the proceedings in the trial court. The court reiterated that the reasons for declining the amendment of pleadings in its earlier ruling remained valid and applicable. The application for stay was therefore unmerited, and the court exercised its discretion to dismiss it, while nonetheless granting a distant hearing date to allow the applicant time to pursue any further remedies regarding the stay.
Court Disposition
application dismissed with costs to the 2nd plaintiff
Orders
- The application dated July 26, 2022 is dismissed with costs to the 2nd plaintiff.
- A far off hearing date to be given in the final term of the year.
Full Case Text
Judgment text and source record
32 paragraphs
Morop Distributors (K) Limited & another v Nairobi City County Government & 4 others (Environment & Land Case 178 of 2009) [2023] KEELC 505 (KLR) (26 January 2023) (Ruling)
Neutral citation: [2023] KEELC 505 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 178 of 2009
LN Mbugua, J
January 26, 2023
Between
Morop Distributors (K) Limited
1st Plaintiff
John Gathama Maingi
2nd Plaintiff
and
Nairobi City County Government
1st Defendant
Job Kipnandi Chebon
2nd Defendant
NK Brother
3rd Defendant
Attorney General
4th Defendant
Step Ahead Limited
5th Defendant
Ruling
1. Coming up for determination is an application dated July 26, 2022 brought forth by the 1st plaintiff seeking orders that there be a stay of proceedings herein pending the hearing and determination of an appeal in relation to the ruling of this court delivered on May 26, 2022.
2. The application is premised on a supporting affidavit of Joyce Cherono the advocate for the applicant dated July 26, 2022 and a further affidavit.
3. The applicant contends that it is aggrieved by the ruling of this court dated May 26, 2022 in which their application dated June 17, 2021 to amend their pleadings was declined. It is averred that the orders sought will not occasion any prejudice to the respondents and that the intended appeal has high chances of success. The applicant has availed a ruling from the court of appeal in which leave to file a notice of appeal out of time was granted.
4. The 2nd plaintiff has opposed the application via the replying affidavit of John Gathama Maingi, its director who avers that the application is an abuse of the court’s process and a new scheme by the applicant to delay the matter. The deponent also avers that no appeal has been filed yet.
5. I have considered all the arguments raised herein including the rival submissions. Whether to grant a stay of proceedings or further proceedings is a matter of judicial discretion – see Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] eKLR, Watu Credit v Geoffrey Mokaya Aboki Karen Chepkurui [2022] eKLR, further each case depends on its own facts; see Ezekiel Muke Musembi v H Young & Company (EA) Limited [2019 eKLR.
6. I find that the entire ruling delivered by this court on May 26, 2022 aptly captures the reasons as to why the proceedings herein should not be stayed and I need not belabor the same.
7. Further, I find that the court of appeal ruling dated September 30, 2022 only granted the applicant leave to appeal out of time and no more. I therefore come to the conclusion that the current application dated July 26, 2022 is not merited. The same is hereby dismissed with costs to the 2nd plaintiff. The court will however give a far off date for hearing in the final term of the year in order to give the applicant sufficient time to ventilate the issue of stay of proceedings.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26THDAY OF JANUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N MBUGUAJUDGEIn the presence of:-Omolo for 2nd plaintiffWere for 3rd defendantAllan Kamau for 4th defendantCourt assistant: Eddel