[2019] KEHC 1356 (KLR)
The High Court found that granting a stay of proceedings and judgment in the lower court would be premature and would interfere with the decisional independence of the trial court. The court emphasized that the appellant would have the opportunity to address any grievances, including the alleged procedural...
Source-derived case information.
- Citation
- [2019] KEHC 1356 (KLR)
- Parties
- Appellant: Reynolds Construction Company; Respondent: Cobra Security Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 457 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings and Judgment in Lower Court Pending Appeal
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Proceedings, Cross Examination Rights, Judicial Discretion, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reynolds Construction Company
Appellant
Cobra Security Company Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings and Judgment in Lower Court Pending Appeal
Legal Issues
- 1 Whether the High Court should stay proceedings and the delivery of judgment in the lower court pending determination of the appeal.
- 2 Whether the lower court's decision to close the case before cross-examination of the defence witness was procedural.
Ratio Decidendi
The High Court found that granting a stay of proceedings and judgment in the lower court would be premature and would interfere with the decisional independence of the trial court. The court emphasized that the appellant would have the opportunity to address any grievances, including the alleged procedural irregularity regarding the cross-examination of the defence witness, after the final judgment is delivered. Intervening at this stage would contravene the overriding objective of the Civil Procedure Act to facilitate the just, expeditious, and efficient disposal of cases. Accordingly, the application for stay was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of proceedings and judgment in the lower court is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 457 OF 2019
REYNOLDS CONSTRUCTION COMPANY.........................APPELLANT
VERSUS
COBRA SECURITY COMPANY LIMITED.......................RESPONDENT
RULING
There is a pending Judgment in the lower court which is seized of the main trial in CMCC No 7543 of 2013. The plaintiff closed its case and the defendant presented its witness who gave evidence in chief but was not cross examined for reasons that appear in the record herein. By an application dated 7th August, 2019 appellant/applicant sought orders for a stay of proceedings and the writing of the judgment, pending the hearing and determination of the appeal lodged following the ruling of the lower court, whereby the proceedings were terminated and judgment reserved before the defence witness was cross-examined.
The application is supported by grounds set out on the face of the application alongside an affidavit sworn by the Operations Manager of the appellant/applicant. The application is opposed and there are grounds of opposition alongside a replying affidavit sworn by the advocate for the respondent. Both parties have also addressed the court orally on the application.
I have, in considering the merits of the application, related the grounds advanced by the appellant/applicant to the Memorandum of Appeal filed on 7th August, 2019. Without saying much so as not to cause any prejudice on the positions of the parties, what this court is being asked is, to determine whether or not the order by the lower court to close the case before the defence witness was cross-examined is procedural. By asking this court to direct the Chief Magistrate’s court to adopt the respondent’s defence witness testimony as tendered, is definitely asking that I interfere with the decisional independence of the trial court, which in my view is not appropriate in view of the pending appeal.
The respondent has raised an important ground that the application is premature. This court would be stepping beyond its limit if it were to order that the trial court should not deliver its judgment on the evidence of the parties already on record.
In the event the appellant is dissatisfied with the final judgment then there will be an opportunity to address all grievances including what has been stated in the present memorandum of appeal. It shall definitely mitigate against the overriding objective set out in sections 1A, 1B and 3A of the Civil Procedure Act if I were to interfere with the procedure in the lower court.
With those brief remarks I am unable to agree with the appellant in the said application and therefore dismiss the application lodged by the appellant. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 19th day of December, 2019.
A. MBOGHOLI MSAGHA
JUDGE