[2007] KECA 68 (KLR)
The Court of Appeal held that although the applicant's intended appeal was arguable, the applicant failed to demonstrate that the appeal would be rendered nugatory if a stay of proceedings was not granted. The court relied on its prior decision in DAVID M. SILVERSTEIN V. ATSANGO [2002] 1 KLR 867, emphasizing that...
Source-derived case information.
- Citation
- [2007] KECA 68 (KLR)
- Parties
- Applicant: Quasar Limited; Respondent: Kobil Petroleum Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 14 of 2006
- Procedural Posture
- Stay Application / Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Proceedings, Consolidation of Suits, Res Judicata, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Quasar Limited
Applicant
Kobil Petroleum Limited
Respondent
Procedural Posture
Stay Application / Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of proceedings in the superior court pending the determination of the intended appeal.
- 2 Whether the application for consolidation of suits was res judicata and an abuse of court process.
- 3 Whether the intended appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court of Appeal held that although the applicant's intended appeal was arguable, the applicant failed to demonstrate that the appeal would be rendered nugatory if a stay of proceedings was not granted. The court relied on its prior decision in DAVID M. SILVERSTEIN V. ATSANGO [2002] 1 KLR 867, emphasizing that the mere existence of an arguable appeal is insufficient; the applicant must also show that the appeal would be rendered nugatory without the stay. The court found no such risk in this case and dismissed the application for stay of proceedings.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA AT NAIROBI
Civil Appli. Nai 14 of 2006
QUASAR LIMITED ……………………………..….. APPLICANT
AND
KOBIL PETROLEUM LIMITED …..……..……. RESPONDENT
(Application for stay of proceedings pending the lodging and determination of an intended appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Milimani, Commercial Courts (Honourable Lady Justice Mary Kasango) dated and delivered on the 27th April, 2005
in
H.C.C.C. NO. 412 OF 2003)
********************
RULING OF THE COURT
This application expressed to be brought under rule 5(2)(b) of the Rules of this Court seeks an order of stay of proceedings in Nairobi Milimani HCCC NO. 412 of 2003, pending the hearing and determination of an appeal which we are informed from the bar that it has been preferred against the ruling and order of the superior court (Kasango J.) made on 27th April, 2005.
On 9th July, 2003, the applicant filed suit at the High Court of Kenya being KISII HCCC NO. 99 of 2005 (“the Kisii Suit”)against the respondent seeking, inter alia, a permanent injunction restraining the respondent from evicting the applicant from certain premises known as Kisii Mun/Block 111/77. Two days later, the respondent also lodged another suit at Nairobi, Milimani, being HCCC 412 of 2003 (“the Nairobi suit”), seeking certain injunctive orders against the applicant in respect of the same premises.
It is on record that on the 21st July, 2003 the respondent filed an application in the Kisii suit for orders that the suit be transferred to the Commercial Division of the High Court of Kenya at Milimani, Nairobi, for hearing and determination, but, the said application was dismissed with costs on 7th October, 2003 and on 17th October, 2003, the respondent herein filed a notice of appeal and we have not been informed whether an appeal thereafter had been preferred or not.
However, on 15th December 2003 the respondent once again filed another application in the Nairobi suit seeking orders to consolidate the Kisii suit with the Nairobi suit for trial and determination before the Commercial Court in Nairobi. The proceedings before the superior court showed that the applicant opposed the aforestated application on various grounds, it being argued in the main ground that the application was Res-Judicata and a grave abuse of the court process and also that the respondent having filed a similar application in Kisii High Court and the same having been dismissed. Despite these submissions, the application was allowed being directed that the two cases be consolidated and heard together at Nairobi. Thus, it is plain that the respondent reversed and obtained in the Nairobi suit what it had lost in the Kisii suit. Promptly, the applicant took immediate steps to initiate an appeal by filing a Notice of Appeal.
We have considered the rival submissions advanced by both Mr. Makori, for the applicant, and Mr. Esmail, for the respondent. We are prepared to assume in favour of the applicant and we do so that the appeal is an arguable one and is not a frivolous one. But, will it be rendered nugatory if we do not grant a stay of proceedings in the superior court? We do not think so. Relying on our decision in DAVID M. SILVERSTEIN V. ATSANGO [2002] 1 KLR 867 we hold that the applicant has failed to satisfy us that the success of the intended appeal would be rendered nugatory.
In the result this application fails and we dismiss it with costs.
Dated and delivered at Nairobi this 23rd day of March, 2007.
P.K. TUNOI
………………
JUDGE OF APPEAL
E.O. O’KUBASU
………………
JUDGE OF APPEAL
E.M. GITHINJI
……………….
JUDGE OF APPEAL
I certify that this istrue copy of the original.
DEPUTY REGISTRAR