[2017] KEHC 1680 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 292 OF 2016

ROBERT GATHIGANA NJAGI………APPELLANT/APPLICANT

VERSUS

JOHN MUTUA MANDA……………….............….RESPONDENT

RULING

The Appellant/Applicant has moved this court by way of a Notice of Motion dated the 23rd June, 2017 seeking orders for stay of proceedings in CMCC No. 7564 of 2014 pending the hearing and determination of the Appeal. He has also sought the costs of the application.

The application is premised on the grounds set out in the body of the same and it’s supported by the affidavit of Robert Githigana Njagi sworn 23rd June, 2017.

The Appellant has deponed that he raised a preliminary objection dated 19th December, 2014 in the Chief Magistrate’s Court on the jurisdiction of the said court to hear and determine Civil Suit No. 7564/2014 currently pending before it.

In a ruling delivered on the 5th day of May, 2016, the Preliminary Objection was dismissed following which he has filed an appeal before this court.

He avers that the intended Appeal has very high chances of success and he is apprehensive that if the proceedings in the lower court are not stayed, the matter will proceed before a court that is devoid of jurisdiction thus rendering the Appeal nugatory.

The application is opposed vide a replying affidavit sworn by John Mutua Manda on 5th October, 2017. It is averred that the application has no merits and ought to be dismissed. The deponent contends that the purported Appeal is fatally defective and ought to be struck out on the ground that no leave was sought by the Appellant before filing the Appeal and that it offends the provisions of Order 43 Rule 1 of the Civil Procedure Rules as read with Section 75 of the Civil Procedure Act.

The Applicant has thus argued that there is no proper appeal filed to merit the prayers sought by the Appellant/Applicant and that the application is only meant to drag litigation in CMCC No. 7564 of 2014.

The court has considered the application, the affidavits and the submissions by the respective parties.

The guiding legal principles in an application for stay of proceedings have been enunciated in several judicial decisions for example in the case of Kenya Power & Lighting Company Limited Company Vs Esther Wanjiru Wokabi (2014) eKLR. These are;

(1) The decision 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.

(2) 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 should it be granted.

(3) In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order.

(4) In considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, 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.

I have perused the Memorandum of Appeal filed herein against the ruling of the learned Magistrate. The Preliminary Objection was on the jurisdiction of the court to hear the matter that the Appellant has sought to stay.

It is trite law that jurisdiction of a court or Tribunal to hear a matter is conferred by the Constitution or by statute and jurisdiction is everything. In my view, the Appeal is arguable and it is only fair that the application herein is granted pending the hearing and determination of the Appeal.

Dated, Signed and Delivered at Nairobi this 6th day of December, 2017

………………

L. NJUGUNA

JUDGE

In the presence of:-

…………….for the Appellant/Applicant

……………for the Respondent