[2022] KEHC 16484 (KLR)

Urban Solutions Real Estate Limited & another v Halal Meat Productions Limited & another (Civil Case 10 of 2019) [2022] KEHC 16484 (KLR) (Commercial and Tax) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16484 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 10 of 2019

WA Okwany, J

December 8, 2022

Between

Urban Solutions Real Estate Limited

1st Plaintiff

Carling Wood Investment Company Limited

2nd Plaintiff

and

Halal Meat Productions Limited

1st Defendant

Zam Zam Abib t/a Abib & Associates Advocates

2nd Defendant

Ruling

1. This ruling is with respect to the application dated November 2, 2021 wherein the respondent seeks the following orders:-1. Spent2. Spent3. There be a stay of further proceedings in this case pending the hearing and determination of the appeal by the 1st defendant against the ruling of this honourable court delivered on July 22, 2021. 4.Costs of this Application be in the cause.

2. The application is supported by the affidavit sworn by the 2nd defendant Zam Zam A. Abib and is premised on the following grounds:-1. The applicant is aggrieved by the ruling of this honourable court delivered on July 22, 2021 and has lodged a notice of appeal with respect to the said ruling.2. The instant matter is scheduled to proceed for pre-trial on November 15, 2021 prior to the determination of the applicant's appeal in the Court of Appeal.3. There is a real and imminent likelihood that this suit shall proceed for pre-trial and be heard prior to the determination of the applicant's appeal against the ruling of this honourable court aforesaid.4. Unless the orders sought herein are granted, the applicant's appeal shall be rendered nugatory and a mere academic exercise making this application extremely urgent.5. It will not be optimum utilization of judicial time and resources to proceed with further action in this matter at the risk of such action being rendered nugatory by the Court of Appeal.6. The appeal has material bearing on the suit herein as it is impacts on the very parties to this suit.7. It is in the interest of justice that the proceedings in this case be stayed pending the outcome of the intended appeal.8. The applicant's appeal raises material questions of law and fact, is meritorious and has high prospects of success.

3. The application was opposed through the replying affidavit sworn by the 1st plaintiff’s director Mr Fathudin Ali Mohamed who states that the application seeks to delay the hearing and determination of the suit. He further states that the application presents a serious and grave interference with the plaintiff’s fundamental right to conduct the case.

4. The application was canvassed by written submissions which I have considered.

5. The threshold to be observed for stay of proceedings was laid out in the following 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.”

6. In Re Global Tours & Travel Ltd HCWC No 43 of 2000 Ringera, J (as he then was) held that:-“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 matter, it should bear in mind such factors as the need for expeditious disposal of case, 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.”

7. In the present case, the applicant sought to strike out the 2nd defendant from the suit through the application dated September 10, 2020. This court rendered its ruling on July 22, 2021 in which it dismissed the application. The applicant herein moved to the Court of Appeal to challenge the impugned ruling and therefore seeks to stay these proceedings pending the appeal.

8. The applicant’s case is that it has an arguable case at the appellate court as it challenges the legality of the court’s decision declining to strike out the 2nd defendant from the suit. I have perused the record and I find that the 3 months’ delay in filing the application cannot be said to be inordinate.

9. It is my view that the cause of action is between the plaintiff and the two defendants. The ruling that is subject to the appeal sought to strike out the 2nd defendant from the suit. I find that the rest of the parties will not be affected by the appeal. I also find that the appeal will not be rendered nugatory if the application is not allowed as the 2nd defendant can still be compensated by way of costs. In the premises, I find that staying the proceedings pending the appeal will cause great prejudice to the other parties to the suit.

10. In the upshot, I find that that it would not be in the interest of justice to stay the proceedings herein as the same will only serve the purpose of delaying the suit to the detriment of the other parties. I therefore find no merit in the instant application which I hereby dismiss with costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF DECEMBER 2022. W A OKWANYJUDGEIn the presence of: -Mr Osodo for Owino for plaintiffs/respondentsMr Ahmed for Wangila for defendantMr Kimani for Ogunde for 2nd defendant/applicantCourt Assistant- Sylvia