[2023] KEHC 27555 (KLR)

Sons & another v Independent Electoral & Boundaries Commission & another; Marjan & another (Affected Party) (Civil Suit 61 of 2015) [2023] KEHC 27555 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27555 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 61 of 2015

F Wangari, J

November 17, 2023

Between

H.R Ganijee & Sons

Applicant

and

John Omollo Nyakongo t/a HR Ganijee & Sons

Plaintiff

and

Independent Electoral & Boundaries Commission

Defendant

and

Boundaries Commission

Respondent

and

Marjan Hussein Marjan

Affected Party

Obadiah Keitany

Affected Party

Ruling

1. By the Application dated 24th January 2023, the Plaintiff sought the following reliefs:1. Spent2. Spent3. Spent4. That this honorable court be pleased to issue an order setting aside the proceedings of this Court with respect to the hearing on 13th December 2022 of the Respondent’s Application dated 17th November 2022. 5.That this honorable court be pleased to issue an order directing that the Respondent’s Application dated 17th November 2022 be set down for fresh hearing.

2. The Application is based on the grounds stated in the Application as well as the Supporting Affidavit sworn by Ndaiga Gacheru which materially stated inter alia as follows:i.The Applicant’s Advocates inadvertently failed to attend court during the hearing of the Application dated 17th November 2022 and the hearing proceeded in absence of the Applicant.ii.The Respondent served the Applicant with Ruling notice for the Application on 16th November 2022 indicating that the Application was scheduled for Ruling on 20th December 2022. iii.The Applicant filed this Application on 19th December 2022 seeking to arrest the Ruling but it was inadvertently not placed on the court file.iv.The Applicant has prima facie case that will be prejudiced if the Ruling dated 20th December 2022 is not set aside and fresh hearing of the Application ordered.

Analysis and Determination 3. I have perused the Application and its Supporting Affidavit and annexures. The Application substantially seeks to set aside the Ruling delivered in respect of another Application dated 17th November 2022 and that the Application dated 17th November 2022 be heard afresh.

4. It is trite law that whether or not to issue an order for stay of proceedings is a matter of the court’s discretion exercised after due consideration of the merits of the case and the likely effect on the ends of justice.

5. The exercise of that discretion should be premised on conscientious and judicious decision based on defined principles which were expounded by Ringera J in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000:-“As I understand the law, 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 ……the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And 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.”

6. As conceded by the Applicant, there is an Application dated 19th December 2022 in which the Applicant also sought to stay the impugned Ruling alongside other similar prayers as stated in this current Application. A copy of this Application is annexed to her Supporting Affidavit of the instant Application.

7. The court is not told whether the Application dated 19th December 2022 was heard and determined but the court record shows otherwise that the Application is still pending unheard. The Applicant then lodged this Application dated 16th January 2023.

8. The threshold for stay of proceedings has been illuminated in the passages in Halsbury’s Law of England, 4thEdition, Vol. 37 page 330 and 332 that:-“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

9. I have perused the impugned Ruling. I note that therein the Court noted as follows:“The court record shows that although the Application was duly served for inter partes hearing on 13th December 2022, the Respondent neither filed a response nor attended court to defend the said Application.”

10. The Applicant indeed prayed for leave to file a Replying Affidavit in the Application and also deponed in the Supporting Affidavit that counsel was inadvertently absent on the date of hearing the Application. I appreciate that the jurisdiction of the court to set aside its decisions is wide and unfettered.

11. In Shah v Mbogo and Another [1967] EA 116 the Court of Appeal of East Africa held that:“This discretion (to set aside ex parte proceedings or decision) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” (emphasis added)

12. The Applicant in this case has not acted with the required tenacity to have this matter expedited. The impugned ruling pertains to the recognition of an Award made by the Arbitrator. The Applicant did not file a response to the Application for the recognition of the Award. The Arbitration process was determined and the Award sought to be recognized, published and enforced was issued on 31st December 2018, about 3 years ago.

13. I do not think this is a matter to keep for a circus of litigation especially as it emanates from a determined Arbitration, an Alternative Dispute Resolution mechanism. It will not be in the interest of expeditious justice to lengthen litigation in such a matter like this one since the injustice to the Respondent will be devastating as compared to the prejudice to the Applicant.

14. Therefore, I am not satisfied that the Applicant deserves the orders sought in the Application. The court in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR held that: -“…Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent…”

15. It is my finding that it would be unfair for the Applicant to be entertained any further on their indolence and lack of action with regard to having their application dated 17th November, 2020 prosecuted and visiting their indolence on the Respondent, who has been ever present and ready to proceed with the case.

16. The provisions of Article 159(2)(a)(b)(c) and (d) of the Constitution of Kenya as read with Sections 1A and 1B of the Civil Procedure Act, enjoin this court to foster and facilitate the overriding objective of the Act to render justice to parties in all Civil Proceedings in a just, expeditious, proportionate and affordable cost to parties.

17. The Applicant is also conducting piecemeal litigation and which this court would ordinarily frown at. The Application dated 19th December 2022 was filed on the same date but unprocedurally abandoned and this Application filed about one month later. This is an abuse of the Court process. A party should not bring causes as an afterthought.

18. As was held in the case of Abdigan Omari Mohamed & 2 others v GAM [2020] eKLR, “in any event, litigation must come to an end and courts will not allow a party to abuse the process of the court through piece meal litigation.”

19. In view of my above analysis and findings, the conclusion becomes irresistible that the Applicant's Notice of Motion dated 16th January 2023 is unmeritorious. Accordingly, the Applicant's Application dated 16th January 2023 is dismissed with costs to the Respondent.Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF NOVEMBER, 2023. …………………F. WANGARIJUDGEIn the presence of;Macharia Advocate h/b for Ndaiga Advocate for the Defendant/ApplicantM/S Murage Advocate for the Plaintiff/Respondent.Barile, Court Assistant