[2008] KEHC 1081 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in bringing the application for stay of proceedings, as the application was filed several months after the judgment and only a day before the lower court hearing. The applicant's reason for delay, namely waiting for typed...
Source-derived case information.
- Citation
- [2008] KEHC 1081 (KLR)
- Parties
- Appellant: Robert Mbevi Maluki; Respondent: Kenrub Industries Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 235 of 2003
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Stay of Proceedings, Substantial Loss, Delay in Application, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Mbevi Maluki
Appellant
Kenrub Industries Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for granting a stay of proceedings pending appeal.
- 2 Whether the delay in bringing the application for stay was justified.
- 3 Whether the applicant will suffer substantial loss if the stay is not granted.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in bringing the application for stay of proceedings, as the application was filed several months after the judgment and only a day before the lower court hearing. The applicant's reason for delay, namely waiting for typed proceedings and judgment, was not accepted because such documents were not necessary for the stay application. Furthermore, the applicant did not demonstrate any substantial loss that would be suffered if the stay was not granted; the only consequence would be that the lower court proceedings would continue, and the applicant would still have the right to appeal if dissatisfied...
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
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 235 of 2003
ROBERT MBEVI MALUKI...…………....APPELLANT/RESPONDENT
VERSUS
KENRUB INDUSTRIES LIMITED..…....RESPONDENT/APPLICANT
R U L I N G
By a notice of motion dated 5th June, 2006, Kenrub Industries Limited the respondent to this appeal (hereinafter referred to as the applicant), seek an order for stay of proceedings in the CM’s Court at Nairobi in Civil suit No. 9135 of 2000 pending the hearing and final determination of an appeal which the applicant has lodged in the Court of Appeal against the judgment of this court delivered on the 12th October, 2005.
It is the applicant’s contention that it has an arguable appeal which stands very good chances of success. The applicant maintains that unless the order of stay of proceedings is granted, the lower court will proceed with the hearing of the suit and this will render the applicant’s appeal in the High Court nugatory, as a result of which the applicant will suffer substantial loss.
The application is opposed by Robert Mbevi Maluki (hereinafter referred to as the respondent) but who was the appellant in this court. The respondent maintains that the applicant has not satisfied the conditions for granting an order of stay of proceedings as he has been guilty of inordinate delay in bringing the application and has also not shown how he stands to suffer any substantial loss. The respondent maintains that he will be prejudiced if an order of stay of proceedings is granted as the suit has already taken 6 years since it was filed and an order of stay of proceedings will delay it further.
I have carefully considered this application. It is evident that the application for stay of proceedings was filed on the 5th June, 2006 while the judgment of this court which is subject of the applicant’s appeal was delivered on 12th October, 2005. The applicant has not given any good reason as to why the application was not brought immediately after that judgment. It is contended that the applicant had applied for typed copies of proceedings and judgment to enable it lodge an appeal in the Court of Appeal. That does not however provide a plausible explanation for the delay as the application for stay of proceedings did not require copies of the proceedings or judgment. All that was necessary was evidence to show that an appeal had been initiated and a notice of appeal was sufficient for that purposes. It would appear that the applicant only ran to this court a day before the suit in the lower court was scheduled for hearing to forestall the hearing of the suit in the lower court. That does not demonstrate any good faith on the part of the applicant. Further, the applicant has not demonstrated the substantial loss that it is likely to suffer if the order of stay of proceedings is not granted. The worst that can happen is that the hearing in the lower court will proceed. Should the applicant lose, it would have another opportunity to have a second bite of the cherry in an appeal in the High Court. No prejudice will therefore be caused to it. I find no just cause to grant an order for stay of proceedings as that will only have the effect of delaying the proceedings thereby prejudicing the respondent.
For these reasons, I find no merit in this application and do therefore dismiss it with costs.
Dated and delivered this 4th day of November, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Desai for the applicant
Advocate for the respondent absent