[2005] KEHC 550 (KLR)
The court found that there was no prejudice to the applicant if the suit proceeded, as any remarks made by the previous judge were not binding on the court hearing the matter on its merits. The applicant's right of appeal would not be affected by the hearing proceeding, as he would retain the right to appeal any...
Source-derived case information.
- Citation
- [2005] KEHC 550 (KLR)
- Parties
- Plaintiff: National Bank of Kenya Ltd.; Defendant: Joab Henry Onyango Omino
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 957 of 1997
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed
- Judges
- PJ Ransley
- Legal Topics
- Stay of Proceedings, Appeal Rights, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
National Bank of Kenya Ltd.
Plaintiff
Joab Henry Onyango Omino
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 appeal.
- 2 Whether the remarks made by the previous judge are prejudicial to the applicant's right to a fair hearing.
- 3 Whether proceeding with the suit would prejudice the applicant's right of appeal.
Ratio Decidendi
The court found that there was no prejudice to the applicant if the suit proceeded, as any remarks made by the previous judge were not binding on the court hearing the matter on its merits. The applicant's right of appeal would not be affected by the hearing proceeding, as he would retain the right to appeal any adverse findings. Given the age of the case, further delay would be unjust to the respondent. Therefore, the application for stay of proceedings was dismissed and the suit was ordered to be set down for hearing at the earliest possible date.
Court Disposition
application dismissed
Orders
- The application to stay proceedings is dismissed.
- The suit is to be set down for hearing at the earliest possible date.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 957 of 1997
NATIONAL BANK OF KENYA LTD. ……………………………..PLAINTIFF
VERSUS
JOAB HENRY ONYANGO OMINO …………………………….DEFENDANT
RULING
The Appliant seeks to stay the proceedings in the suit on the ground that he wishes to appeal against decision of Mr. Justice Azangalala declining to strike out the suit against the Applicant.
Order 41 Rule 4(1) gives the court the jurisdiction to stay proceedings.
The provisions of Order 41 Rule 4(2) apply only in the case of application for stay of execution.
The criteria as I see it for ordering a stay is that the Applicant would suffer prejudice if such an order was not made.
It is Mr. W’Obiero contention that if the suit is allowed to proceed it would not only prejudice the Applicant’s rights for appeal but certain remarks which he says Mr. Justice Azangalala made in his ruling of 19. 7.2005 in which he dismissed the Applicant’s application to dismiss the suit would be prejudicial to the hearing of this suit.
I have read Mr. Justice Azangalala’s ruling. In it I find nothing, which is prejudicial to the Defendant’s rights in a hearing of the suit on its merits. Nothing said by Mr. Justice Azangalala is any way binding on a court hearing this matter. If the Applicant has no liability then he has nothing to fear as this will emerge at the hearing.
I also cannot see that if the suit goes for hearing the Applicant’s rights in the Appeal will be affected as in the event that judgement is given against the Applicant he will have a right to appeal against each finding.
This is an old case filed in 1997 it will do no justice to the Respondent if the hearing of this case is further delayed.
In my view this suit should be heard on a priority basis and I so order. I dismiss this application to stay the proceedings and order that the suit be set down for hearing at the earliest possible date. Costs in cause.
Dated and Delivered at Nairobi this 26th Day of October, 2005.
P. J. RANSLEY
JUDGE