[2017] KEHC 1170 (KLR)
The court found that the parties had previously consented to stay the proceedings in this suit pending the determination of Petition No. 5 of 2013. Although the petition was struck out, the Court of Appeal subsequently reinstated it, restoring the parties to their original positions as at the date of the consent....
Source-derived case information.
- Citation
- [2017] KEHC 1170 (KLR)
- Parties
- Plaintiff: Dr. Mulianga Ekesa; Defendant: Talitia District Health Hospital; Defendant: Faddy Malaba
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 135 of 2013
- Procedural Posture
- Land and Property Suit / Ruling on Application for Stay of Proceedings
- Outcome
- Application for stay of proceedings allowed.
- Legal Topics
- Stay of Proceedings, Pendency of Related Petition, Consent Orders, Land Dispute, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Mulianga Ekesa
Plaintiff
Talitia District Health Hospital
Defendant
Faddy Malaba
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application for Stay of Proceedings
Legal Issues
- 1 Whether the suit should be stayed pending the hearing and determination of Petition No. 5 of 2013.
- 2 Whether the previous consent to stay proceedings remains valid after the reinstatement of the petition by the Court of Appeal.
Ratio Decidendi
The court found that the parties had previously consented to stay the proceedings in this suit pending the determination of Petition No. 5 of 2013. Although the petition was struck out, the Court of Appeal subsequently reinstated it, restoring the parties to their original positions as at the date of the consent. Since the petition is now pending and its outcome will affect the present suit, the court held that it is appropriate and just to stay the proceedings until the petition is determined. The application for stay was therefore allowed as prayed.
Court Disposition
Application for stay of proceedings allowed.
Orders
- This suit is stayed pending the hearing and determination of Petition No. 5 of 2013.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
ELC CASE NO. 135 OF 2013
DR. MULIANGA EKESA...................................................PLAINTIFF
VERSUS
TALITIA DISTRICT HEALTH HOSPITAL)...........1ST DEFENDANT
FADDY MALABA).................................................2ND DEFENDANT
RULING
[1]. On 10/9/2013 by the consent of the parties to this suit, this case was stayed pending the determination of Petition No. 5 of 2013. This Suit and Petition No. 5 of 2013 both touch on Land Parcel Number West Bukusu/South Mateka/970.
[2]. Petition No. 5 of 2013 was struck out on 26/6/2014. Since this suit was held in obeyance pending the hearing of Petition No. 5 of 2013 and which Petition was struck out. This suit was therefore fixed for Hearing on 5/10/2017. An appeal was preferred to the Court of appeal against the striking of Petition No. 5 of 2013 vide Eldoret Civil Appeal No. 266 of 2014.
[3]. On 16/2/2017 a Judgment was delivered by the court of appeal which vacated the order of dismissal of Petition 5 of 2013 aforesaid and issued an order for the said petition reinstatement.
The applicant has therefore brought this application asking that this suit be stayed pending the hearing and determination of the petition No. 5 of 2013.
[4]. The respondents objected and cited delay as a major reason. It was argued that there was no reason to wait for petition to be determined. Finally it was argued that the petition would not be determined any time soon. That although the original stay was by consent, the same lapsed after striking out of the petition. That a 2013 matter ought to be heard and determined by now.
[5]. There was a consent that this suit should be stayed pending the hearing of Petition No. 5 of 2013 on 10/9/2013. The petition was struck out by the Court. There was no option by the applicant, after the striking out other than fixing this suit for hearing.
Consequently, the striking out of the petition number 5 of 2013 was set aside by the Court of Appeal. The parties therefore reverted to the position they were at on 10/9/2013. The petition is now alive and is pending for hearing. Parties had by consent agreed that the hearing of the said Petition had a bearing on this suit. That position still persists.
The Application by the applicant is therefore merited. I allow the same as prayed.
Judgment read in Open Court before the Counsels.
Dated at Bungoma this22ndday of November, 2017.
S. MUKUNYA
JUDGE.
In the presence of:
Hon. S. Mukunya - Judge
Madam Wakoli: For the defendant
Mr. Kundu for Bw’ Onchiri for the Plaintiff