[2022] KEHC 15120 (KLR)

Thuranira v Mutai & another (Civil Appeal E621 of 2021) [2022] KEHC 15120 (KLR) (Civ) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 15120 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E621 of 2021

DO Chepkwony, J

July 19, 2022

Between

Kenneth Kinyua Thuranira

Appellant

and

Kellen Kagwiria Mutai

1st Respondent

Mwalimu National Sacco

2nd Respondent

Ruling

1. The application subject of this ruling is dated November 1, 2021 and is seeking for orders that;a.Spent;b.Spent;c.This court be pleased to order stay of proceedings in the Co-operative Tribunal being CYC No 222 of 2021 pending the hearing and determination of the appellant’s appeal;d.Costs of this application be provided for.

2. The application is premised on the grounds its face and in the supporting affidavit of Kenneth Kinyua Thuranira sworn on November 1, 2021. The appellant/applicant’s case is that the Hon B Kimemia (M/S), the chairperson of the Co-operative Tribunal in Nairobi delivered the impugned ruling and being aggrieved by the same, the appellant/applicant filed a reference before the tribunal for injunctive orders but the same was denied and dismissed vide a ruling delivered on September 2, 2021. Thereafter, the tribunal proceeded to issue directions on the preparation and prosecution of the matter and scheduled the matter for pre-trial directions on December 10, 2021. The appellant submits that his appeal is arguable with high chances of success and since it challenges the tribunal’s jurisdiction to preside over the dispute, the appeal might be rendered nugatory if the orders for stay of proceedings are not granted.

3. The application is opposed by the 1st respondent vide the replying affidavit sworn by Kellen Kagwiria Mutai on January 6, 2022. In the deponents view, the applicant has neither advanced any legal or factual justification for the grant of orders sought nor has substantial loss been demonstrated. She argues that stay of proceedings is a grave fundamental interference to the rights of a party to conduct litigation, and in any event the application herein has not satisfied the conditions set out under order 42 rule 6 of the Civil Procedure Rules, 2010 which is only meant to delay the conclusion of the matter before the tribunal. She thus sought for the application to be dismissed for want of merit.

Analysis and Determination 4. I have considered the pleadings and submissions made by parties. Only one issue lie for determination and that is whether the applicant has made a case for orders of stay of proceedings to issue as sought.

5. In the foremost, it must be remembered that the power to grant a stay of proceedings is a discretionary and must be exercised judiciously with the aim of serving justice to parties in a dispute as was held in the case of 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, 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” (emphasis mine)

6. Further, the Court of Appeal established the threshold for grant of orders for stay of proceedings in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR, Civil Appeal No 40 of 2018 by relying on the passages in Halsbury’s Law of England, 4th Edition. 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 proceeding 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 not 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.”

7. Therefore, it follows that in addressing an application seeking stay of proceedings, the court ought to take into account the need for expeditious disposal of cases, the prima facie merits of the intended appeal, the proper utilization of the precious and scarce judicial time and whether the application was brought expeditiously. It is also an exercise that must be conducted with the seriousness it deserves and only allowed under stringent circumstances for deserving cases.

8. I have perused the memorandum of appeal dated September 27, 2021 and one striking issue that arise is whether the corporative tribunal had the jurisdiction to wade into succession matters such as the one at hand. In my view, this issue is worth the attention of this court and would render the proceedings before the tribunal nugatory should this court ultimately find that the tribunal is not properly clothed with jurisdiction to handle and or preside over the matter.

9. I am thus inclined to grant the orders sought and in the upshot, the application succeeds and is allowed in the manner presented save for orders as to costs. The applicant is directed to file the record of appeal within sixty (60) days and have the same listed for hearing.

10. Each party shall bear its own costs.

It is so ordered.

DIRECTIONS DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 19TH DAY OF JULY , 2022D O CHEPKWONYJUDGEIn the presence of:Mr Mwenda for appellant/applicantMr Mugo counsel for 2nd respondentMrs Muthomi counsel for 1st respondentCourt Assistant - Kevin