[2007] KEHC 3477 (KLR)
The court held that the mere pendency of an appeal does not automatically stay proceedings in the lower court. The right to seek a stay lies primarily with the appellant, who in this case has not sought such relief and instead wishes the suit to proceed. The applicant, being the respondent in the appeal, has not...
Source-derived case information.
- Citation
- [2007] KEHC 3477 (KLR)
- Parties
- Appellant: Peter Okiabera Omwenga; Respondent: Samuel Nyabiba Nyakeri
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 124 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings
- Outcome
- application dismissed with costs to the respondent/appellant
- Legal Topics
- Stay of Proceedings, Abuse of Court Process, Interlocutory Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Okiabera Omwenga
Appellant
Samuel Nyabiba Nyakeri
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings
Legal Issues
- 1 Whether the court should grant a stay of proceedings in the lower court pending the determination of the appeal.
- 2 Whether the pendency of an appeal automatically stays proceedings in the lower court.
- 3 Whether it is an abuse of court process for the suit to proceed while the appeal is pending.
Ratio Decidendi
The court held that the mere pendency of an appeal does not automatically stay proceedings in the lower court. The right to seek a stay lies primarily with the appellant, who in this case has not sought such relief and instead wishes the suit to proceed. The applicant, being the respondent in the appeal, has not demonstrated sufficient grounds for the stay, and the court found no contradiction or abuse of process in allowing the lower court proceedings to continue. The court emphasized that speculation about the outcome of the appeal or the suit is not a valid basis for granting a stay. Accordingly, the application for stay of proceedings was dismissed with costs to the respondent/appellant.
Court Disposition
application dismissed with costs to the respondent/appellant
Orders
- The application for stay of proceedings is dismissed.
- Costs awarded to the respondent/appellant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 124 of 2006
PETER OKIABERA OMWENGA………………………..APPELLANT
=VERSUS=
SAMUEL NYABIBA NYAKERI………………………..RESPONDENT
RULING
This is an application for stay of proceedings in Eldoret CMCC No. 1454 of 2004 between the parties. Hearing is scheduled for 12th November,2007. The grounds for the application include the argument that the hearing of the suit amounts to a contradiction with the existence of the appeal and that there will be a conflict prejudiced to the Applicant.
This application is not made by the Appellant as is the usual norm but by the Respondent in the Appeal. It is made under the provisions of Section 3 and 3A of the Civil Procedure Act. Basically, what the Applicant is saying that it is an abuse of the Court process for the suit to proceed while the Appeal is pending.
This case has peculiar facts and the parties are taking very unique positions. I would start by saying that the Plaintiff is the Principal owner of the suit in the lower Court though there is a Counter –claim, by the Defendant. A Plaintiff ought to be always ready to dispose of his/her suit expeditiously. It is true that the Defendant filed an appeal against the interlocutory application to strike out. But it is trite law that the filing of an appeal does not result in the automatic stay of proceedings. The Courts will not stay proceedings merely because an appeal is pending. The right person to lament that the hearing of a suit pending the hearing of an appeal will render an appeal nugatory is the Appellant himself. In this case, there is no such lamentation from the Appellant who is the Defendant. The Defendant wants the suit to proceed. In such circumstances, I do not see any conflict or contradiction in the hearing proceeding. The Chief Magistrate’s Court should proceed as if the Appeal is non-existent and thereafter render its verdict. What happens to the pending appeal is for the Appellant to bother about. The Respondent is at this stage protected in the knowledge that if the appeal is abandoned, he will get costs of the Appeal. As to what is likely to happen if the Plaintiff or Defendant shall be successful, that is a matter of conjecture at this stage and this Court will not go into a vain voyage of speculation.
I do hereby decline to grant the orders and the application is dismissed with costs to the Respondent/Appellant.
DATED AT ELDORET THIS 9TH DAY OF NOVEMBER 2007.
M.K. IBRAHIM,
JUDGE.