[2022] KEHC 9953 (KLR)

Optima Sports Management International (UK) Limited v Kenya Broadcasting Corporation (Civil Case 686 of 2009) [2022] KEHC 9953 (KLR) (Commercial and Tax) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9953 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 686 of 2009

WA Okwany, J

July 14, 2022

Between

Optima Sports Management International (UK) Limited

Plaintiff

and

Kenya Broadcasting Corporation

Defendant

Ruling

1. Through the application dated 28th July 2021, the applicant seeks the orders to stay of all proceedings and execution of the judgment delivered on 6th February 2020 pending the hearing and determination of the application dated 5th November 2020.

2. The application is supported by the affidavit of the applicant’s counsel Mr. Lenin O. Awino who avers that the defendant filed the application dated 5th November 2020 seeking to stay the execution of the judgement but that before the said application could be heard and determined, the plaintiff however took out a notice of taxation for party and party bill of costs. He further states that the defendant has been served with Certificate of taxation which the plaintiff has threatened to execute unless the orders sought herein are granted thus rendering the application dated 5th November nugatory.

3. Parties canvassed the application by written submissions. The main issue for determination is whether the applicant/defendant is entitled to the orders sought.

4. In Re Global Tours & Travel Ltd HCWC No. 43 of 2000 Ringera, J (as he then was) held that:-“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matter, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”

5. A perusal of the court record reveals that on 17th March 2021, parties were directed to file and exchange written submissions with respect to the application for stay of execution pending appeal. This court has the discretion to stay proceedings and/or execution. It is trite that discretionary powers must however be exercised judiciously and only in the most deserving cases.

6. In the instant case, I find that the applicant has a right to be heard which right can best be achieved if it is given an opportunity to prosecute its application. The applicant proposed that it was willing to deposit a sum of Kshs 5 million to court as security.

7. In the premises, I find merit in the application and therefore allow it in the following terms:-a.That a stay of proceedings and execution proceedings is hereby granted pending the hearing and determination of the application dated 5th November 2020. b.The stay is granted on condition that Kshs 5 million is deposited in court within 30 days from the date of this ruling failure of which the application shall stand dismissed.c.That the costs of this application shall be in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JULY 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Aloo for Maruti for Plaintiff/Respondent.No appearance for Defendant/Applicant.Court Assistant- Sylvia s