[2022] KEHC 1437 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 1095 OF 2003

SYNRESINS LIMITED.....................................................PLAINTIFF/APPLICANT

-VERSUS-

PRAVIN VORA T/A VORA CONSTRUCTION..................................DEFENDANT

RULING

1. The plaintiff/applicant brought the Notice of Motion dated 9thDecember, 2021 supported by the grounds presented on its face and the facts stated in the affidavit of advocate Muema Kitulu.The plaintiff sought for a stay of all proceedings with regard to the defendant’s party and party Bill of costs dated 12thJanuary 2020 and the status quo maintained pending the hearing and determination of the applicant’s appeal.

2. The respondent put in a replying affidavit sworn by advocateIsaiah Mudambi Mandala on 20thJanuary, 2022, to oppose theMotion.

3. When the motion came up for interparties hearing before thiscourt, the parties respective advocates chose to rely on theaverments made in their respective affidavits.

4. I have considered the grounds set out on the face of the motionand the facts deponed in the affidavits supporting andchallenging it, the Grounds of Opposition and the authoritiesfiled.

5. The applicant avers that the plaintiff's preliminary objection tothe defendant/respondent Bill of Costs dated 12thNovember 2020 was dismissed by the Supreme Court on October 7, 2021, and was appealed to the Court of Appeal on October 8, 2021, through an even-date Notice of Appeal.

6. He further avers if the defendant's party and party Bill of Costsproceeds on the 16th of December 2021, as originally specified, the court may award costs and execution against the plaintiff/ applicant, rendering his appeal nugatory.

7. He depones that the defendant stands to suffer no prejudice ifthe present application is allowed since in any event he has already received the judgment sum.

8. He further depones that the balance of convenience favoursgranting of the plaintiff’s application herein in the interest ofjustice and to avoid the Court of Appeal acting in vain.

9. In reply thereto, Isaiah Mudambi Mandala states that if the bill istaxed as instructed by the High Court, the plaintiff will incur no disadvantage; in any case, execution is a procedure that will not constitute an ambush against the plaintiff since it will have the right to request a stay of execution if necessary.

10. The defendant avers that the plaintiff has not provided anysecurity, that he has not shown that substantial loss will result if the stay is not granted, and that the application was filed without undue delay.

11. The defendant states that in the alternative, if the honourablecourt is inclined to grant the application, it shall be on the condition that Kshs.3,357,343/= be put in the attorneys joint interest account within 14 days.

12. The granting of a stay of proceedings is purely a matter of judicialdiscretion. The principles surrounding the granting of an order for stay of proceedings were aptly discussed by the court in the case ofWilliam Kamunge & 2 others v Muriuki Mbithi [2016] eKLR:

“…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”

13. On the first condition on length of delay, from my perusal of acopy of the impugned ruling which was annexed to the Motion, it is not in dispute that the said ruling was delivered on 7thOctober, 2021 which is close to two (2) months prior to the filing of the Motion. In my mind, while there has clearly been a delay in bringing the Motion, I do not think that the delay is inordinate.

14. The second principle concerns itself with whether the applicanthas an arguable appeal with reasonable chances of success. The defendant are of the view that the plaintiff’s application does not satisfy that limb of that the appeal is arguable

15. In my view, if an application for a stay of proceedings is deniedand the defendant's party to party Bill of Costs is allowed to proceed for taxation, the appeal will not be rendered nugatory. The applicant still has the right to file a reference to challenge taxed costs and may even obtain an order for stay of execution. The applicant cannot therefore be said will suffer substantial loss.

16. In the end, I find the Motion dated 21st May, 2021 to be withoutmerit. It is dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF MARCH, 2022.

..........................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff/Applicant

……………………………. for the Defendant