[2013] KEHC 4995 (KLR)
The court found that the applicant failed to demonstrate what loss would be suffered if the stay was not granted, especially since the issue of locus standi was left open for determination in the substantive application. The court emphasized the age of the matter and the public interest in expeditious disposal of...
Source-derived case information.
- Citation
- [2013] KEHC 4995 (KLR)
- Parties
- Applicant: Nitin Mangaldas Lakhani; Respondent: Jayantilal Pitamberdas Nathwani; Respondent: Manjuben Jayantilal Shah; Respondent: Vibhaben Arunbhai Shah; Respondent: Jairaj (Sunil) Jayantilal Nathwan
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 151 of 1999
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Stay of Proceedings, Appeals, Locus Standi, Costs, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nitin Mangaldas Lakhani
Applicant
Jayantilal Pitamberdas Nathwani
Respondent
Manjuben Jayantilal Shah
Respondent
Vibhaben Arunbhai Shah
Respondent
Jairaj (Sunil) Jayantilal Nathwan
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether a stay of proceedings should be granted pending the hearing and determination of the intended appeal.
- 2 Whether the applicant would suffer loss if the stay is not granted.
- 3 Whether the age of the matter and the need for expeditious disposal outweigh the reasons for stay.
Ratio Decidendi
The court found that the applicant failed to demonstrate what loss would be suffered if the stay was not granted, especially since the issue of locus standi was left open for determination in the substantive application. The court emphasized the age of the matter and the public interest in expeditious disposal of cases. Granting a stay would only serve to delay the proceedings further without sufficient justification. Accordingly, the application for stay was dismissed and costs were ordered in the cause.
Court Disposition
application dismissed
Orders
- The application for stay of proceedings is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Succession Cause 151 of 1999 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>
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IN THE MATTER OF:THE ESTATE OF THE LATE UJAMBEN
KANJI NARANJEE LAKHANI ALSO
KNOWN AS UJAMBEN LAKHANI – DECEASED
BETWEEN
NITIN MANGALDAS LAKHANI…………...........………APPLICANT
AND
1. JAYANTILAL PITAMBERDAS NATHWANI
2. MANJUBEN JAYANTILAL SHAH
3. VIBHABEN ARUNBHAI SHAH
4. JAIRAJ (SUNIL) JAYANTILAL NATHWAN…….RESPONDENTS
RULING
By a Notice of Motion dated 25th April, 2012 the applicant sought the following orders:
“1. THAT all further proceedings in this cause be stayed pending the hearing and determination of the intended appeal to the Court of Appeal against the whole of the ruling delivered by Lady Justice G. Nzioka, herein on 16th February, 2012.
2. THAT costs of this application be provided
for.”
The application was supported by the affidavit of KISHORE NANJI Advocate. The Interested party NITIN MANGALDAS LAKHANI opposed the application by way of a replying affidavit sworn on 29th May, 2012.
On his part the applicant submits that although the court allowed them twenty one (21) days within which to file their formal application, they were unable to do this in time due to the fact that there was a delay in provision of the typed ruling. He argues that if the application dated 30th November, 2000 proceeds to hearing then their intended appeal may be rendered nugatory.
MR. KHAGRAMAdvocate made oral submissions on behalf of the applicant whilst MR. C. B. GOR and MR. A. B. SHAH submitted on behalf of the respondents. I have given careful consideration to the submissions of both counsels. Order 42 of the Civil Procedure Rules provides for the factors to be taken into account by the High Court when considering an application for stay.
In her ruling Hon. Nzioka declined to make any finding on locus standi and instead directed that it would be determined at the hearing of the application dated 30th November, 2010. This allows the applicant the opportunity to ventilate his submissions in that application. I fail to see what loss would be suffered.
I note that this is a very old matter and it is desirable that litigation come to an end one way or another. A stay at this point would only further serve to slow down the progression of this case. I am not persuaded of the merits of this application for stay. The same is hereby dismissed. Costs in the cause.
Dated and delivered at Mombasa this 25th day of February, 2013.
M. ODERO
JUDGE
In the presence of:
Mr. Khagram for 2nd and 3rd Respondents
Mr. Omollo h/b Mr. Gor for Applicant
Court Clerk Mutisya