[2006] KEHC 2715 (KLR)
The court found that the application for stay of proceedings was not justified because the previous ruling did not constitute an appealable order or preliminary decree. The court clarified that its earlier direction was for the 1st Defendant to take action under Section 15(3) of the Kenya Airports Authority Act, and...
Source-derived case information.
- Citation
- [2006] KEHC 2715 (KLR)
- Parties
- Plaintiff: Total Kenya Limited; Plaintiff: Car Max Limited; Defendant: Kenya Airports Authority; Defendant: Uchumi Supermarkets Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 437 of 2005
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application for stay of proceedings declined
- Legal Topics
- Stay of Proceedings, Appeals, Preliminary Objection, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Total Kenya Limited
Plaintiff
Car Max Limited
Plaintiff
Kenya Airports Authority
Defendant
Uchumi Supermarkets Ltd
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the court should stay proceedings pending the hearing of an intended appeal against a previous ruling.
- 2 Whether paragraphs 9 and 10 of the Replying Affidavit should be struck out for non-disclosure of source of information.
- 3 Whether the previous decision constituted an appealable order or decree.
Ratio Decidendi
The court found that the application for stay of proceedings was not justified because the previous ruling did not constitute an appealable order or preliminary decree. The court clarified that its earlier direction was for the 1st Defendant to take action under Section 15(3) of the Kenya Airports Authority Act, and if such action was not taken, the matter became redundant. The refusal to grant a stay would not render any appeal nugatory, as there was nothing substantive to appeal against. The court also held that the challenged paragraphs in the affidavit did not offend the rules, as the grounds for the statements were sufficiently referenced. Ultimately, the application for stay was...
Court Disposition
application for stay of proceedings declined
Orders
- The application for stay of proceedings is declined.
- No order as to striking out paragraphs 9 and 10 of the Replying Affidavit.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 437 of 2005
TOTAL KENYA LIMITED ………………....................………………1ST PLAINTIFF
CAR MAX LIMITED …………………..................…..………………2ND PLAINTIFF
VERSUS
KENYA AIRPORTS AUTHORITY ……................…….………1ST DEFENDANT
UCHUMI SUPERMARKETS LTD………..............……..…….2ND DEFENDANT
RULING
The 1st Defendant/applicant seeks orders that the proceedings herein be stayed pending the hearing of an intended appeal against my ruling of the 16. 9.2005 on the grounds that the Respondent would not be prejudiced and the appeal rendered nugatory.
Before the application was heard, Miss Wambani for the 2nd Defendant sought to have struck out paragraphs 9 and 10 of the Replying Affidavit of Franklin Juma on the grounds that the source of information is not disclosed contrary to Order 18 rule 3(1). It appears that the contents of these paragraphs are presumptions made and arising from the letter of the 3. 8.2005 referred to by the deponent in paragraph 9 of his affidavit. The proviso to the said rule does allow statements, information and belief showing the sources and grounds thereof. The grounds thereof appears to be the letter referred to above. In the result I do not think that the paragraphs sought to be struck out offend the Order and rule.
Having said that, the issues raised in the Replying affidavit of the Respondent and affidavit of the 2nd Defendant are not relevant to this present application.
A court has jurisdiction to issue an order staying proceedings pending appeal of the requirements of Order 41 rule 4 have been observed and it is just to do so.
In the supporting affidavit of Oscar Amugo Angote to this application there is a statement that when the preliminary objection came up for hearing I disallowed it. This in fact is not correct as I did not in my ruling deal with the preliminary point. The order I made in the ruling was for the 1st Defendant/Respondent to take action under Section 15(3) of the Kenya Airports Authority Act and stayed these proceedings for 14 days to enable it to do so. It may well be that the Applicant is dissatisfied with that order and as a result may wish to appeal against it. However, if the action I suggested was not undertaken then the matter is redundant and I cannot see that refusal to grant a stay will render any appeal against that direction nugatory.
The question arises as to whether my decision gave rise to a preliminary decree or an order. This question was given consideration in Mandavia v Singh [1965] EA 118. The learned Court of Appeal at page 123 states as follows:-
“A finding or decision in limine which permits the suit to proceed is not a preliminary decree…A decision of a court on a preliminary issue framed on a plea of res judicata is not a preliminary decree and is, therefore, not appealable.
A fortiorari, in this matter, as no decision has been made on the preliminary point, there is nothing to appeal against.
What the Applicant should do is refer this matter back to me for the purpose of concluding the preliminary objection and stating what if any action it has taken to carry out my proposal that an application be made for an order under Section 15(3) of the said Act.
In the result, I do not see that any appeal will be rendered nugatory and therefore, decline to order a stay of proceedings as proposed.
Dated and delivered at Nairobi this 2nd day of March, 2006
P. J. RANSLEY
JUDGE