[2019] KEHC 2940 (KLR)
The court held that a stay of proceedings could not be granted because the order refusing an adjournment is a negative order incapable of execution. Furthermore, there is no automatic right of appeal against such an order, and leave to appeal must first be sought and obtained before a stay can be considered....
Source-derived case information.
- Citation
- [2019] KEHC 2940 (KLR)
- Parties
- Plaintiff: Tahir Sheikh Said Grain Millers Limited (Under Administration); Defendant: NIC Bank Limited; Defendant: Garam Investments Auctioneers Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2017
- Procedural Posture
- Civil Suit / Ruling on Application for Stay of Proceedings
- Outcome
- application for stay declined
- Judges
- CA Otieno
- Legal Topics
- Stay of Proceedings, Leave to Appeal, Negative Orders, Adjournment, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tahir Sheikh Said Grain Millers Limited (Under Administration)
Plaintiff
NIC Bank Limited
Defendant
Garam Investments Auctioneers Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Stay of Proceedings
Legal Issues
- 1 Whether a stay of proceedings should be granted pending an intended appeal against an order refusing adjournment.
- 2 Whether leave to appeal is required before a stay can be granted against a refusal to adjourn.
- 3 Whether an order refusing adjournment is a negative order incapable of execution.
Ratio Decidendi
The court held that a stay of proceedings could not be granted because the order refusing an adjournment is a negative order incapable of execution. Furthermore, there is no automatic right of appeal against such an order, and leave to appeal must first be sought and obtained before a stay can be considered. Granting a stay in these circumstances would be improper and without legal basis, as it would amount to reversing the court's own decision without justification. The application for stay was therefore declined.
Court Disposition
application for stay declined
Orders
- The application for stay of proceedings is declined.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 65 OF 2017
TAHIR SHEIKH SAID
GRAIN MILLERS LIMITED (Under Administration)......................PLAINTIFF
VERSUS
1. NIC BANK LIMITED
2. GARAM INVESTMENTS AUCTIONEERS LIMITED..........DEFENDANTS
R U L I N G II
1. The only natural consequence of granting stay of the orders I have just made that the hearing proceeds today is that the matter with stand adjourned.
2. I think if I proceed that way I shall have reversed my own decision without a basis being laid. I also believe that there is need to seek leave to appeal because there exist no right of appeal against an order refusing an adjournment.
3. That article 164 of the constitution gave right to appeal from decisions of the high court to the Court of Appeal is not absolute. That provision has been authoritatively interpreted by the Court of Appeal in CACA No. 16 consolidated with 19 of 2013 Jared Odoyo Okelo vs I.E.B.C and Others [2014] eKLR not to be all encompassing.
4. With that in mind, it would be not be proper to grant stay on an intended appeal before leave is granted. The second reason I am unable to grant stay under Order 42 Rule 6(3) is that the Order I have given this morning refusing an adjournment is a negative order incapable of execution and to grant stay would be to act gratis and for the sake of it.
5. The application for stay is declined.
Dated and delivered at Mombasa this 25th day of January 2019.
P.J.O. OTIENO
JUDGE