[2022] KEHC 15840 (KLR)

Wachiuri v 15 Minutes Logistics Ltd & 2 others (Civil Appeal E795 of 2022) [2022] KEHC 15840 (KLR) (Civ) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15840 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E795 of 2022

JK Sergon, J

December 1, 2022

Between

Charles Kagotho Wachiuri

Appellant

and

15 Minutes Logistics Ltd

1st Respondent

Jesmily Saghe

2nd Respondent

Catherine Mbala

3rd Respondent

Ruling

1. The appellant/applicant in the present instance brought the notice of motion dated October 11, 2022 supported by the grounds presented on its face and the facts stated in the affidavit of advocate, Mwazighe Micar. Here, the applicant sought for an order of a stay of both the ruling delivered on September 16, 2022 and all proceedings in Nairobi Scccom No E4478 of 2022 pending the hearing and determination of the appeal lodged against the aforementioned ruling.

2. To oppose the motion, the 1st respondent put in the replying affidavit sworn by its director, Warren Otieno Nyanjom.

3. The 2nd and 3rd respondents did not file any response to the motion or participate at the hearing thereof.

4. At the hearing of the motion, the parties through their respective advocates chose to rely on the averments made in the supporting and replying affidavits, though it is noted that the applicant also filed brief written submissions.

5. I have considered the grounds featuring on the face of the motion; the facts deponed to in the affidavits supporting and opposing the motion respectively; and the brief written submissions on record.

6. It is clear from the instant motion that the issues arising for determination are two (2)-fold in nature.

7. I will first address the issue on stay of the ruling delivered by the trial court on September 16, 2022.

8. Upon my perusal of the record, I note that the ruling in question relates to a notice of preliminary objection filed by the applicant before the trial court, whereby the trial court dismissed the preliminary objection with costs.

9. From my reading of the abovementioned ruling, I observed that there is therefore nothing to be stayed therein. The court merely issued a negative order.

10. In view of the foregoing circumstances, I decline to grant the order sought to stay the abovementioned ruling.

11. The second issue for determination is whether or not to grant a stay of proceedings in the suit, pending the appeal.

12. It is noteworthy that the granting of a stay of proceedings is purely a matter of judicial discretion, as was highlighted in the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] eKLR cited in the submissions by the applicant.

13. The court in the case of In re Estate of Leah Nyawira Njega (Deceased) [2021] eKLR listed the following as the three (3) main principles for consideration in determining an application seeking a stay of proceedings:a)Whether the applicant has established that he/she has a prima facie arguable case.b)Whether the application was filed expeditiously, andc)Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.”

14. The first principle relates to the expeditious filing of an application. Parties did not submit over the issue.

15. Upon my perusal of the record and as earlier indicated, the impugned ruling was delivered on September 16, 2022 while the instant motion was brought sometime on or about October 11, 2022. In my view, the motion was timeously filed.

16. The second principle concerns itself with the question as to whether the applicant has an arguable appeal with reasonable chances of success.

17. On the one part, the applicant states that he has an arguable appeal on the basis of his notice of preliminary objection which was dismissed by the trial court.

18. In retort, the 1st respondent states that the applicant has not laid out reasonable grounds to warrant the exercise of this court’s discretion in his favour.

19. A reading of the memorandum of appeal shows that applicant is of the view that the trial court did not consider that the territorial jurisdiction over the matter to enable it entertain the suit.

20. In my view therefore, the appeal in question raises prima facie arguable points of law and fact and whose outcome will directly impact on the suit.

21. Turning to the third principle on the interest of justice vis-à-vis the subject of prejudice, the applicant on the one hand is of the view that unless an order for a stay of proceedings is granted, he stands to be greatly prejudiced since the suit may proceed for hearing thereby overriding his right to appeal against the aforementioned ruling.

22. On the other hand, it is the averment of the 1st respondent that the motion is purely intended to circumvent justice and delay the progress of the suit.

23. Having considered the rival arguments, I am not convinced that the applicant will suffer any prejudice if the order is denied. In fact, if proceedings are stayed the same will paralyse the expeditious disposal of suit pending before the Small Claims Court. Under the Small Claims Court’s disputes filed in that court must be disposed of within 60 days. The applicant will not suffer any prejudice because he still retains the right to appeal against the dismissal order.

24. In the case of Ezekiel Mule Musembi v H Young & Company (EA) Limited [2019] eKLR the court held inter alia that the expeditious disposal of cases ought to be a factor for consideration in determining applications seeking an order for a stay of proceedings.

25. In the present instance, it is apparent that the suit was instituted in the year 2022. It is also apparent that the outcome of the appeal will determine the course that the present suit will take particularly in respect to the issue of jurisdiction. Even if the suit proceeds for hearing the appellant still retains o challenge the issue on jurisdiction on appeal.

26. The upshot therefore is that the notice of motion dated October 11, 2022 is without merit. The same is dismissed with costs abiding the outcome of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2022. …………………………….J K SERGONJUDGEIn the presence of:……………………………. for the Appellant/Applicant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent…………………………….. for the 3rd Respondent