[1998] KECA 248 (KLR)
The Court of Appeal held that the applicant had not demonstrated that it would suffer prejudice if the stay of proceedings was not granted. The existence of a counter-claim to be defended meant that the applicant would still have an opportunity to participate in the proceedings. The court found no compelling reason...
Source-derived case information.
- Citation
- [1998] KECA 248 (KLR)
- Parties
- Applicant: Samken Limited; Respondent: Boniface Kaguo Mwangi; Respondent: Contra Tours Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 238 of 1998
- Procedural Posture
- Stay Application / Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Stay of Proceedings, Dismissal for Non Attendance, Adjournment of Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samken Limited
Applicant
Boniface Kaguo Mwangi
Respondent
Contra Tours 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 pending the determination of its appeal.
- 2 Whether refusal to grant a stay would render the intended appeal nugatory and cause prejudice to the applicant.
Ratio Decidendi
The Court of Appeal held that the applicant had not demonstrated that it would suffer prejudice if the stay of proceedings was not granted. The existence of a counter-claim to be defended meant that the applicant would still have an opportunity to participate in the proceedings. The court found no compelling reason to exercise its discretion in favour of the applicant, and therefore dismissed the application for stay of proceedings with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, TUNOI & SHAH, JJ.A.)
CIVIL APPLICATION NO. NAI. 238 OF 1998 (95/98 UR)
BETWEEN
SAMKEN LIMITED .......................................APPLICANT
AND
BONIFACE KAGUO MWANGI
CONTRA TOURS LIMITED ...............................RESPONDENTS
(Application for stay of proceedings in an intended appeal from a Ruling of the High Court of Kenya at Nairobi (Mr. Justice Ole-Keiwua) dated 22nd July, 1998 in H.C.C.C. NO. 517 OF 1990) *******************
RULING OF THE COURT
In this application the applicant seeks to stay proceedings in HCCC 517 of 1990 until the pending appeal lodged by it is disposed of on the ground that unless the stay is granted the appeal will be rendered nugatory and the applicant stands to suffer great prejudice. The record shows that on 22nd July, 1998 when the suit was called to hearing Mr. Chege, counsel for the applicant the plaintiff in the suit, could not produce his witnesses. His application for adjournment was rejected by the learned judge who then proceeded to dismiss the suit under Order 9B r 4 of the Civil Procedure Rules. As the appeal is pending we will not say anything on it at this stage.
However, it suffices to say that all is not lost for the applicant if the proceedings are not stayed. Moreover, there is a counter-claim to be defended and we do not see how the applicant will be prejudiced if we decline to grant this application. We refuse it. It is accordingly dismissed with costs.
Made at Nairobi this 22nd day of October, 1998.
R. O. KWACH
...............
JUDGE OF APPEAL
P. K. TUNOI
...............
JUDGE OF APPEAL
A. B. SHAH
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR