[2023] KEHC 27131 (KLR)

Onyango v Okiambe & another (Miscellaneous Civil Application E158 of 2022) [2023] KEHC 27131 (KLR) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27131 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Civil Application E158 of 2022

TA Odera, J

December 5, 2023

Between

Gilbert Ouma Onyango

Applicant

and

Hezekiah Osebe Okiambe

1st Respondent

Gideon Onchwati Mose

2nd Respondent

Ruling

1. By a Notice of Motion dated 22nd July 2022 and filed through the firm of Bosire Gichana & Company Advocates and under sections 3A, 75, 78, 79G of the Civil Procedure Act and all enabling provisions of the Law, the Appellant/Applicant herein seeks the following orders: -1. Spent.2. Spent.3. That this Honourable Court be pleased to grant the Applicant leave to appeal against the ruling of this Honourable Court delivered on 25th August 2021. 4.That all proceedings of KISII CM SUCC. No.99 Of 2016 relating to the Estate of Timothy Oyago Ogwa’ng (Deceased) be stayed pending hearing and determination of the intended appeal.5. That the costs of this application be provided for.6. That any other orders That meets the ends of justice.

2. The grounds on the face of the application are That the Honourable Court delivered its ruling on 25. 8.2021. The Applicant was dissatisfied with the Ruling. He stated that a party must first obtain leave before filing an appeal in succession matters since an appeal does not lie as of right. The Applicant applied for leave before the Trial Court which was granted on 15. 6.2022 but the timeline for leave had since lapsed.

3. The Application was supported by an Affidavit sworn by the Applicant on 22. 7.2022. The Applicant deponed that when the Trial Court delivered the Ruling on 25. 8.2021, the Advocate on record inadvertently failed to seek leave to appeal. He deponed that an appeal arising out of a succession matter could only be filed with leave, as an appeal does not lie as a matter of right. Leave to appeal was granted on 1. 12. 2021. The Respondents applied to set aside the orders granting leave which application was dismissed on 15. 6.2022. He deponed that the Court had power to enlarge time. He deponed that the delay in filing the Application was caused by the time taken in prosecuting the application seeking leave and defending the application seeking to set aside the said orders. He deponed that the appeal was arguable.

4. The Respondents filed Grounds of Opposition dated 29. 7.2022 and swore a Replying Affidavit on 19. 8.2022 in opposition to the Application.

5. In the Grounds of Opposition, the Respondents stated that the Application was without merit, frivolous, vexatious, scandalous and amounted to gross abuse of the Court process. The Respondents further stated that vide the Ruling delivered on 25. 8.2021, the Applicant was granted 14 days to appeal and only lodged an application almost one year later. The delay was therefore inordinate, undue and unreasonable and no plausible explanation was issued for the delay. They stated that a similar application dated 29. 10. 2021 was again filed and similar orders as those in the current application were granted on 1. 12. 2021. Again, vide a further ruling issued on 15. 6.2022, the Applicant was directed to take steps to prosecute the appeal within 30 days. They stated that the current application was res judicata and that the Applicant ought to have appealed as opposed to filing a miscellaneous application. They stated that allowing the application would deprive them of their right to property and the opportunity to use and enjoy a peaceful and quiet possession of their property.

6. In the Replying Affidavit, the Respondents reiterated the contents of their Grounds of Opposition. They attached copies of the Applications dated 29. 10. 2021 and 15. 6.2022. They deponed that litigation must come to an end and urged the Court to uphold the principle of Res Judicata as the Applicant had filed a similar Application before the Magistrate Court.

Submissions. 7. The Application was disposed of by way of submissions. The Applicant filed his Submissions dated 16. 11. 2022. The Applicant submitted that the current Application was different from the one dated 29. 10. 2021 and filed before the Trial Court. He submitted that the Application dated 29. 10. 2021 was brought under section 75 of the Civil Procedure Act and order 43 rule 1 of the Civil Procedure Rules and the prayer sought was for an enlargement of the time for leave to appeal to the Superior Court. He submitted that the right to appeal was not a matter of right which explained the Application dated 29. 10. 2021 before the Trial Court. He further submitted that the current Application sought leave to appeal out of time and was filed under section 79G of the Civil Procedure Act and order 50(6) of the Civil Procedure Rules. He submitted that the delay in filing the appeal was based on an excusable mistake by the Applicant’s Counsel and ought not to be visited upon him.

8. The Respondents filed their Submissions dated 20. 2.2023. On whether the Application was Res Judicata, the Respondents relied on the definition of Res Judicata as per section 7 of the Civil Procedure Act. They also relied on the Black’s Law Dictionary of Res Judicata being:“An issue that has been definitely settled by judicial decision …the three essentials are:1. An earlier decision on the issue,2. A final judgment on the merits and3. The involvement of same parties, or parties in privity with the original parties…”

9. The Respondents also relied on the case of Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR, where Mugo J defined Res Judicata. They further cited the case of Njangu v Wambugu and Another, Nairobi HCCC No. 2340 of 1991 (unreported) where the Court therein discouraged unending litigation. They submitted that the Application dated 22. 7.2022 was therefore Res Judicata and ought to be dismissed.

10. On whether the Application should be allowed, the Respondents submitted that allowing the Application would delay trial and therefore, prejudicial to the Respondents. They cited the case of Kenya Wildlife Service v James Mutembei (2019) eKLR where Gikonyo J held that stay of proceedings was a grave interruption in the litigation and should not be allowed unless so satisfied beyond reasonable doubt. The power to stay proceedings should only be exercised sparingly and in exceptional cases. They cited the case of Global Tours & Travels Limited; Nairobi HC Winding Up Case No. 43 of 2000 where Ringera J (as he then was) held that stay of proceedings was a matter of judicial discretion and the sole question would be whether it would be in the interests of justice to stay the proceedings, and if so, on what terms it should be granted. The Respondents cited the case ofMuchanga Investments Limited v Safaris Unlimited (Africa) Ltd. & 2 Others (2009) eKLR where the Court of Appeal held that judicial time should be used effectively to avoid impeding the administration of justice. In Port Florence Community Health Care v Crown Health Care Limited [2022] eKLR, Kamau J held that stay of proceedings was an equitable relief and as such, an applicant had to approach the Court with clean hands. Having been granted the stay orders previously, the Applicant unjustifiably failed to observe the conditions attached to the stay. On costs, the Applicant relied on section 27 of the Civil Procedure Act that provides that normally costs follow the event. They cited the case ofPeter Muriuki Ngure v Equity Bank (K) Ltd. [2018] eKLR where the Court stated that costs are awarded to fully or partially indemnify the successful party for expenses incurred in hiring counsel to defend or enforce their legal rights. They urged the Court to dismiss the Application.

Determination 11. I have considered the Application herein, the Replying Affidavit, the Grounds of Opposition and the Parties’ Submissions.

12. It appears to me that the following are the main issues for determination: -1]Whether the Application dated 22. 7.2022 is Res Judicata;2]Whether the Applicant is deserving of orders of leave to file an appeal out of time; and3]Whether the Court should stay the proceedings in Kisii CM SUCC No. 99 of 2016.

13. I will consider the issues under separate heads.

Res Judicata 14. Section 7 of the Civil Procedure Act provides as follows: -No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

15. Courts have over time pronounced themselves on the matter. In Florence Maritime Services Ltd. v Cabinet Secretary Transport, Infrastructure & 3 Others [2021] eKLR, the Supreme Court extensively handled the doctrine of Res Judicata. In Paragraph 58, the Court cited its decision inKenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another, Motion No. 42 of 2014 [2016]eKLR (Muiri Case) where the Supreme Court held as follows:54]The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.56]The learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012 have observed that the principle of res judicata, is a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decisions.”57]The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313 as follows:“…where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” (emphasis supplied)58]Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others, (2010)eKLR, under five distinct heads:(i)the matter in issue is identical in both suits;(ii)the parties in the suit are the same;(iii)sameness of the title/claim;(iv)concurrence of jurisdiction; and(v)finality of the previous decision.59. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & Another, (2012) eKLR, thus:The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No. 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine res judicata…”59. For Res Judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v Central Bank of Kenya & Others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 Others Civil Appeal 110 of 2011 (2013) eKLR)

16. I am now called upon to apply the said test to the present application. It is not disputed that the parties are the same. It is not disputed that the Trial Court applied itself and rendered its decision on the Application as evidenced by the first paragraph of the Trial Court’s Ruling delivered on 15. 6.2022. There is also no contest as to the Court’s jurisdiction.

17. The only question left is whether the subject matter was the same. The Respondents deponed that the Applicant had filed a similar application before the Trial Court dated 29. 10. 2021. The Respondents’ Annexture “GOM 1” was the said application. The Application dated 29. 10. 2021 was pegged on sections 3A, 75, 78, 79G of the Civil Procedure Act and sought the following prayers:1. That this Application be certified as urgent.2. That service be dispensed with in the first instance.3. That time for seeking leave to appeal to the superior court be enlarged.4. That this honourable court be pleased to grant the applicant leave to appeal against the ruling of this honourable court delivered on 25th August 2021 upon granting prayer (3) above.5. That all proceedings pertaining to the estate of the deceased be stayed pending the hearing and determination of the intended appeal.6. That the costs of this application be provided for.7. That any other orders that meets the ends of justice.

18. The grounds of the Application were that the Court delivered its ruling on 25. 8.2021 and being dissatisfied with the ruling, the applicant was desirous of appealing against the whole ruling. However, the Applicant required leave to appeal against the matter, it being a succession matter. The timelines for seeking leave had already lapsed as at the time of filing the said application. The Application was supported by an affidavit sworn by the Applicant on 29. 10. 2021. He reiterated the grounds of the Application.

19. The instant Application is also predicated on sections 3A, 75, 78, 79G of the Civil Procedure Act. The prayers are as follows: -1. That this application be certified as urgent.2. That service be dispensed with in the first instance.3. That this honourable court be pleased to grant the applicant leave to appeal against the ruling of this honourable court delivered on 25th August 2021. 4.That all proceedings of KISII CM SUCC. NO. 99 OF 2016 relating to the Estate of Timothy Oyago Ogwa’ng (deceased) be stayed pending the hearing and determination of the intended appeal.5. That the costs of this application be provided for.6. That any other orders that meets the ends of justice.

20. A cursory look at the prayers in the 2 applications are strikingly identical save for one prayer. The 2 Applications are so similar so much so that the instant Application refers to the Ruling of this Court as opposed to the Trial Court’s Ruling.

21. In the Application dated 29. 10. 2021, the Applicant was seeking leave to appeal while in the instant Application, the Applicant seeks for leave to appeal out of time. This is clearly shown in paragraph (h) of the grounds of the Application where the Applicant stated that “h) That by the time leave to appeal was granted period of appeal had lapsed, hence the need to seek extension of time.”

Leave to Appeal out of Time 22. Section 79G of the Civil Procedure Act- Time for filing appeals from subordinate courtsEvery appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

23. Leave to appeal out of time is a discretionary matter. For one to satisfy the Court to exercise discretion in their favour, the test was set in the Supreme Court Case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR as follows: -a.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

24. I have noted from both Parties and the Trial Court, postulate that one must obtain leave to appeal to this Court. I have carefully perused the Law and I cannot find anything to that effect.

25. Section 50 of the Law of Succession, Cap. 160 of the Laws of Kenya provides thus:50. Appeal to High Court(1)An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.(2)An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.

26. My understanding is that an appeal from subordinate Courts in succession matters to the High Court lie as a matter of right. I am persuaded by the decision in Re Estate of the Nathan Kiio Itinga (Deceased) (Succession Cause E002 of 2021) [2022] KEHC 11638 (KLR) (22 July 2022) (Ruling) where the Court held“12. It thus follows that the High Court has jurisdiction to entertain an appeal from any order or decree of the magistrates’ court in succession proceedings. I note that the section does not stipulate a time frame for filing an appeal. However, I take it that an appeal should have been filed within 30 days.”

27. However, an appeal to the Court of Appeal can only be filed upon obtaining leave from the High Court, and where such leave is denied, upon obtaining leave from the Court of Appeal. In the case of Re Estate of Joel Thaara Ruria (Deceased) [2022] eKLR, the High Court cited the Court of Appeal case of Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another [2014] eKLR, where the Court of Appeal held as follows:“We think that we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused, with leave of this court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious consideration. We think this is good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes.”

28. The Court also cited the Court of Appeal decision in John Mwita Murimi & 2 Others v Mwikabe Chacha Mwita & Another[2019] eKLR, where it was held that:“…Under the Law of Succession Act, there is no express automatic right of Appeal to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused with leave of this court…” (sic)

29. Rules 63 of the Probate and Administration Rules provides as follows:-63. Application of the Civil Procedure Rules and High Court (Practice and Procedure) Rules(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely order 5 rule 2 to 34 and orders 11, 16, 19, 26, 40, 45 and 50, together with the High Court [Practice and Procedure] Rules, shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.Order 43, rule 1 of theCivil procedure Rulesprovides that ‘’An appeal shall lie as of right from the following orders and rules under the provisions of section 75(1)(h) of the Act—(y)order 50, rule 6 (enlargement of time) it is thus clear that order 50 is amongst the orders applicable to the proceedings under the law of succession Act.

30. That said, has the Applicant established a case for extension of time to appeal? The Applicant submitted that the delay in presenting the application was caused by prosecuting the appeal to obtain leave and defending the application to set aside the orders granting the Applicant leave. Firstly, as espoused above, the application for leave was incredibly unnecessary. Secondly, in any event, the decision was rendered on 25. 8.2021 and leave was granted on 1. 12. 2021. The Application for review to set aside those orders was filed on 28. 1.2022, roughly a month after leave was granted. The Application for review was dismissed on 15. 6.2022 while the instant Application was filed on 25. 7.2022, about a month later. There obviously was inordinate delay and I find that the Applicant has not given a reasonable explanation for the delay.

31. I have considered the draft Memorandum of Appeal. The Applicant contends that the Respondents lacked locus standi to file Summons for Revocation of Grant against the Estate of the Deceased and that the Trial Court erred in failing to uphold the Preliminary Objection on the Respondents locus standi. I find that those are arguable issues. I am alive to Right of the applicant to Access to Justice under article 48 of the constitution of Kenya but this must be read together with an article 159(2)(b) of the same constitution which provides for fair hearing and expeditious hearing of cases I find that it would not be in the interests of justice to grant the Applicant leave to appeal out of time as the respondent will be prejudiced by this due to the inordinate delay.

32. On the issue of stay of proceedings in Kisii CM SUCC. NO. 99 of 2016, none of the Parties informed the Court of the present position of Kisii CMSUCC No. 99 of 2016. However, it appears that there was an application filed for Summons for Revocation of Grant and a Preliminary Objection on the Respondents locus standi was filed. Again, the Court is unaware of the status of the Summons for Revocation of Grant and/or the entire matter.

33. That being said, the Courts have expressed themselves in the issue of stay of proceedings. In Meta Platforms, Inc & Another v Motaung & Another; Kenya National Human Rights Equality Commission & 9 Others (Interested Parties) (Civil Appeal (Application) E232 of 2023) [2023] KECA 996 (KLR) (28 July 2023) (Ruling) the Court of Appeal stated as follows:-“26. The nature of an order of stay of proceedings and the principles which should guide a court in exercising its discretion to grant or refuse an application for stay were satisfactorily detailed by the Court of Appeal of Nigeria, Abuja Division in the case ofNNPC & Anor. v Odidere Enterprises Nigeria Ltd. [2008] 8 NWLR (Pt. 1090) 583 at 616-618, per Aboki, JCA. as follows:“Stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case, and therefore the general practice of the courts is that a stay of proceedings should not be granted, unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.”27. Where an interlocutory order does not finally dispose of the case, the court should be slow to stay proceedings because of an aggrieved party. This is so because such an order could be made the subject of an appeal if it ultimately becomes necessary following the final judgment. It is the duty of every court to eliminate situations, which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an end to the proceeding in the trial court, prudence dictates that a stay of proceedings be granted.”28. A balance must be maintained between the right of a party to have the substantive suit heard timeously and the desire of his opponent to be given adequate time to prosecute his appeal. In granting an order of stay of proceedings, the court should be guided primarily by the necessity to be fair to both parties. In our view, the following considerations, though not exhaustive, are relevant, bearing in mind the fact that the peculiar facts and circumstances of the case must always be considered.a.A stay of proceedings can be granted only if there is a pending appeal, which is, prima facie, valid in law.b.The appeal, which forms the basis of an application for stay of proceeding, must be competent and arguable on its merits. Where an appeal is frivolous, vexatious or an abuse of court process, an appellate court will decline jurisdiction to entertain the application.c.Where the interlocutory appeal following an application for stay of proceedings will finally dispose of the case or put an end to the proceedings in the lower court, stay of proceedings would be granted.d.Where the rest will be destroyed, damaged or annihilated before the matter is disposed of, an appellate court will grant stay.e.The Court of Appeal would be reluctant to grant an application for stay of proceedings if it would cause greater hardship than if the application were refused.f.A stay of proceedings will be granted where to do otherwise will tend to render any order of the appellate court nugatory.

34. In the Meta Platforms, Inc & Another v Motaung & Another; Kenya National Human Rights Equality Commission & 9 Others (Supra) the Court of Appeal was faced with a rather similar issue. The Applicants contended that they were foreign entities and therefore not subject of the Court’s proceedings. The Court held as follows:“22. The applicants’ argument is that they are foreign entities. This line of argument is very different from the absence of jurisdiction where a court is divested of the power to hear a case. The argument that the applicants are raising requires evidence to be tested during the trial. We say no more lest we delve into merits of the appeal.29. The question before us is whether the intended appeal will be rendered futile or a mere academic exercise if the order of stay of further proceedings is not granted. In resolving this issue, we ask ourselves what legal ramifications will result if the orders are not granted. It is evident that if an order of stay of further proceedings is not granted, the trial court will proceed to determine the 1st respondent’s application dated February 6, 2023 seeking leave to serve the applicant under order 5 rule 21 on merit and render itself on the issue of leave. Either way, if the applicants will not be satisfied, they shall be at liberty to prefer an appeal to this court. It is also possible that the 1st respondent’s application for leave may not succeed. Further if the application for leave under order 5 rule 21 of the Civil Procedure Rulesproceeds and equally the appeal is heard and determined, if successful, the ruling by the trial court will be rendered otiose. Given the foregoing scenarios, we do not find any plausible reason that the applicants have advanced that will render the appeal nugatory.”

35. Applying the same reasoning to the instant case, the Applicant’s main contention is that the Respondents lacked the locus standi to file summons for revocation for grant- their right to appear before the court. The Lower Court’s jurisdiction to hear the matter is not in contest. There is no indication that the suit was time-barred or otherwise limited due to other temporal parameters. As held by the Court of Appeal, should the Summons for Revocation for Grant be allowed, the Applicant shall still have the right to prefer an appeal against the said decision. - There is also a likelihood that the same could fail, if a determination has not already been made.

36. In any event, I have already found the applicant guilty of laches. I am therefore not inclined to stay the proceedings in the Trial Court.

37. In the upshot Application dated 22. 7.22 lacks merit and is thus dismissed with costs to respondent.

DATED, DELIVERED AND SIGNED AT KISII THIS 5TH DAY OF DECEMBER 2023. TERESA ODERAJUDGEIn the presence of:Mr. Bosire for the ApplicantMr. Godia for the RespondentsOigo - Court AssistantTeresa OderaJudge5. 12. 23. Bosire: We seek leave to Appeal.Order: A formal application be filed.T.A OderaJudge5. 12. 23.