[2022] KEHC 1388 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BOMET

CIVIL APPEAL NO. E032 OF 2021

WATU CREDIT....................................................................................................APPELLANT

VERSUS

GEOFFREY MOKAYA ABOKI...............................................................1ST RESPONDENT

KAREN CHEPKURUI..............................................................................2ND RESPONDENT

RULING

1. The Appellant filed a Notice of Motion Application dated 18th October 2021 which sought the following Orders:

(I) Spent.

(II) Spent.

(III) THAT there be a stay of proceedings in respect to Sotik PMCC No. 47 of 2020 pending the hearing and determination of the Appeal against the ruling delivered on 12th October, 2021.

(IV) THAT this Honourable Court do set aside the proceedings of 12th October 2021 as the same are a nullity and violation of the Applicant/Appellant’s right to a fair hearing.

(V) THAT under the supervisory jurisdiction of the High Court over subordinate courts, the proceedings file, and records of all rulings in respect of Sotik PMCC No. 47 of 2020 be moved to this court to aid in the determination of the appeal.

(VI) THAT the Honourable Court be pleased to transfer Sotik PMCC No. 47 of 2020 to another court in Sotik capable of trying the same.

(VII) THAT the costs of this application be provided for.

2. The Application was brought under Articles 25 (c), 50, 165 (6) and (7) of the Constitution of Kenya, Section 1A, 1B, 3A and Section 18 of the Civil Procedure Act, Order 42 Rule 6and Order 51 Rule 1 of the Civil Procedure Rules. The Application was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Otieno Patrick Oduor on 18th October 2021.

The Applicant’s Case

3. The Applicant averred that he had filed an appeal that sought to have the Ruling in Sotik PMCC No. 47 of 2020 be reviewed or set aside. It was its case that the learned magistrate misdirected himself by allowing the 1st Respondent to produce various documents as exhibits which did not appear in the list of documents served upon the Applicant.

4. The Applicant further averred that its right to a fair hearing was grossly violated as the court allowed documents that were not served upon him to be produced. That this affected his ability to prepare and challenge the veracity of the said documents by way of cross examination.

5. The Applicant stated that it would be in the interests of justice for proceedings in Sotik PMCC No. 47 of 2020 be stayed pending the outcome of the appeal.

6. It was the Applicant’s case that this court was clothed with inherent jurisdiction and wide powers to stay proceedings when the ends of justice required so. It was the Applicant’s further case that this court had power stemming from the Constitution of Kenya to exercise supervisory jurisdiction over the subordinate courts.

The Applicants Submissions.

7. In submissions dated 14th December,2021 and filed on 15th December,2021 the Applicant contended that it was deprived of his right to a fair hearing as provided for under Articles 25 (c) and 50 of the Constitution of Kenya. That the right to a fair hearing encompassed the right to challenge any evidence by way of cross examination. It was the Applicant’s submission that it was not served with the documents and it attached exhibits OPO (1) (a) and (b) as evidence. The exhibits were copies of letters sent to the 1st Respondent’s counsel requesting for documents contained in their list of documents.

8. It was the Applicant’s submission that the 1st Respondent had not proved that he served the Applicant with the documents.

9. The Applicant submitted that the court had a constitutional mandate to ensure that a trial would be fair and therefore retained the power to disallow one party from tabling evidence that was not provided to the other party as contemplated by the rules. He relied on the case of Raila Odinga & 5 Others VS IEBC & 3 others (2013) eKLR to support its submission.

10. In support of its submission on his right to a fair trial, the Applicant relied on the cases of Francis Karioko Muruatetu & Another VS Republic (2017) eKLR, Pinnacle Projects Limited VS Presbyterian Church of East Africa, Ngong Parish & Another (2018) eKLRand SM VS HE (2019) eKLR.

11. The Applicant submitted that this court had powers to stay proceedings pending appeal and the jurisdiction was derived from Order 42 Rule 6 of the Civil Procedure Rules.

12. It was the Applicant’s submission that it was trite law that an arguable appeal constituted an appeal with arguable grounds, irrespective of whether it would eventually succeed. He relied on the case of M/S Master Power Systems Limited VS Public Procurement Administrative Review Board & 2 Others (2015) eKLR to support its submission.

13. The Applicant submitted that the Application was made without undue delay as both the Appeal and Application for Stay of proceedings were filed on 19th October 2021.

14. It was the Applicant’s submission that this court should grant a stay of proceedings pending appeal as the appeal would be rendered nugatory in the event it succeeded. That the matter would proceed to filing of submissions to which Judgment would follow and the Applicant was apprehensive that since the matter was undefended, the court would likely award damages which in the event the appeal was successful, it would be rendered nugatory. He relied on the case of Trade Winds Express Limited & Another VS Eurocraft Agencies Limited (2010) eKLR.

15. The Applicant submitted that the High Court had unfettered discretion to transfer a suit at any stage before a subordinate court to any other court for disposal. He relied on Section 18 of the Civil Procedure Act and in the case of PM Auctioneers VS Mary Njeri (2005) eKLR.

16. It was the Applicant’s submission that the trial court proceeded with the hearing of the matter despite the court being informed that the counsel who had been handling the matter had been served with a Hearing Notice from the Court of Appeal. That the learned magistrate to take judicial notice that a superior court took precedence over a lower court.

17. The Applicant submitted that the way the learned magistrate conducted himself during the trial was questionable and that this resulted in outright bias and prejudice against the Applicant.

18. It was the Applicant’s submission that a fair trial could not be conducted by the trail court and he urged this court to exercise its discretion and transfer the matter to another subordinate court in Sotik.

The Respondent’s Case.

19. The Respondent filed a lengthy replying affidavit sworn by one Abednigo Nyambati on 3rd December,2021. It was the Respondent’s case that the matter had on several occasions proceeded before the trial court. That on the first instance, an interlocutory judgment was entered as the defendant failed to enter appearance and file a defence. The Respondents stated that on the second instance, the matter proceeded when the defence counsel failed to appear in court. That the proceedings were then set aside, firstly by consent; and secondly, on application by the defence counsel.

20. The Respondents averred that the applicant failed to attend court on 29th June 2021. It was their case that the defence counsel made very few appearances in court. That the Applicant had been economical with the truth as to what transpired in court because he did not attend.

21. The Respondents deposed that the Plaint was filed with all the documents and the same were served upon the Applicant. That the aforementioned documents included P3 form, police abstract, treatments notes, receipts, medical report, demand letter and notice to insurance. That they never withheld any documents that they intended to rely on as they were in the court file and that the applicant could have easily perused the court file at their own time to acquaint themselves.

22. The Respondents contended that the matter had come up for hearing three times and it was apparent that the Applicant’s advocate was not keen on proceeding. They stated that the hearing of 20th April 2020, the defence counsel, Patrick Oduor was present in court and the trial court ordered that the case proceeds.

23. It was the Respondents’ case that the application was brought in bad faith and was meant to derail the matter and tarnish the name of the court.

24. I have read through and considered the Notice of Motion Application dated 18th October 2021, the Replying Affidavit dated 3rd December 2021, and the Applicants’ Written Submissions dated 14th December 202. Two issues arise for determination as follows: -

(i) Whether the Applicant should be granted the order for stay of proceedings in Sotik PMCC No. 47 of 2020.

(ii) Whether this Court should exercise its discretion to transfer Sotik PMCC No. 47 of 2020 to another court.

(i) Whether the Applicant should be granted the order for stay of proceedings in Sotik PMCC No. 47 of 2020.

25. In the case of Kenya Wildlife Service Vs James Mutembei (2019) eKLR, Gikonyo J held that:

“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent”.

26. Further, in the persuasive authority in Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000Ringera J, (as he then was) stated 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 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”.

27. In the Kenya Wildlife Case (Supra), Gikonyo J quoted 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”.

28. I am persuaded by the above authorities which lay down the clear principles that stay of proceedings is a grave matter to be entertained only in the most deserving cases as it impacts the right to expeditious trial. It is a discretionary power exercisable by the court upon consideration of the facts and circumstances of each case. As stated by the Court of Appeal in the case of David Morton Silverstein VS. Atsango Chesoni (2002) eKLR: -

“The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the Court's own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts and the facts of this particular case before us, as were the facts in the earlier case, do not show that the appeal will be rendered nugatory if we do not grant a stay”.

29. I have perused the Memorandum of Appeal dated 18th October 2021 and the appellant raised the following grounds:

I. The learned magistrate erred in law and in fact by allowing the 1st Respondent to produce as exhibits, documents which did not appear in the list of documents served upon the appellant.

II. The learned magistrate erred in law and fact by failing to appreciate that the appellant had a right to a fair hearing.

III. The learned trial magistrate erred in fact and in law by failing to abide by the mandatory provisions of Order 11 of the Civil Procedure Rules.

30. In the case of Stanely Kinyanjui Vs.Tony Ketter & 5 Others (2013) eKLR, the Court of Appeal stated that:-

“On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised”.

Additionally, the Court of Appeal in the case of UNIVERSITY OF NAIROBI V RICATTI BUSINESS OF EAST AFRICA (2020) eKLR held that:

“An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous”.

31. Prima facie, the right to fair hearing is an arguable ground; and so is the non-adherence of Order II of the Civil Procedure Rules. However, no evidence has been laid before this court to support these grounds. Firstly, the Applicant has annexed a Ruling delivered on 15th June,2021 which Ruling granted the parties leave to comply with Order II. The Ruling dated 12th October 2021 which the Applicant seeks to overturn is not attached. The Applicant did not also attach and extract of the proceedings of 12th October,2021 in support of his application. It is therefore difficult for this court to appreciate whether or not the intended appeal was arguable.

32. It is clear from the Applicant’s submission’s that the application has been brought without delay. However, as earlier stated, the impugned Ruling was not annexed to the application. From the orders sought, it appears that the Applicant desired this court to exercise its revisionary power to set aside the Ruling and Proceedings while at the same time, staying the proceedings to allow time for appeal. At the same time, the Applicant wishes the file transferred to another trial court for disposal.

33. Regardless of which orders were feasible, due regard must be given to time in order to avoid delaying this matter any further. In the case of MUCHANGA INVESTMENTS LIMITED VS. SAFARIS UNLIMITED (AFRICA) LTD & 2 OTHERS (2009) eKLR, the Court of Appeal stated that:

“Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice.”

34. It is my finding that the stay orders sought are not merited. Thus, the prayer for the stay of proceedings is rejected.

(ii) Whether this Court should exercise its discretion to transfer Sotik PMCC No. 47 of 2020 to another court.

35. The power bestowed upon the High Court to transfer suits of a Civil nature is provided for in Section 18 of the Civil Procedure Act that stipulates:

“(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter—

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn”.

36. In the case of Jimas Corporation Limited Vs.Purity Njeri Kinyanjui (2022) eKLR, Kasango J held that:

“The Court in the case GKK V. ANK (2021) eKLR had opportunity to consider the provisions of Section 18 of Cap 21 as follows: -

“It was held in the Ugandan case of DAVID KABUNGU VS ZIKARENGA HCCC NO. 36 OF 1995that Section 18 (1) (b) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice. What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plaintiff and leaving him to seek his remedy in another jurisdiction… It is well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted.”

37. Additionally, in the case of Hangzhou Agrochemicals Industries Ltd. Vs. Panda Flowers Ltd (2012) eKLR, Odunga J persuasively held that:

“In my view, which view I gather from authorities and from the law, the court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. If the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case”

38. From the above authorities, it is incumbent for the Applicant to make out a strong case for the transfer of the civil case.

39. The Applicant stated that on 20th April 2021, the trial court proceeded with the hearing despite being informed that counsel for the applicant was appearing before the Court of Appeal. He further stated that the trial court refused to take judicial notice of the hierarchy of courts. In his replying affidavit, the Respondent stated that counsel for the applicant, Mr. Patrick Oduor was present in court on the material day. The Applicant then stated that the trial court allowed an application to set aside the proceedings with the condition that the applicant pay throw away costs of Kshs 5000.

40. Taking into consideration the provisions of Section 18 of the Civil Procedure Act and the principles in the two aforementioned cases, I find that the applicant has failed to present any tangible grounds to justify orders for the transfer of the case to another civil court.

41. I find no merit in the Notice of Motion Application dated 18th October 2021 and the same is hereby dismissed. The Interim orders earlier granted are vacated. Costs shall be in the cause.

42. The Appellant is at liberty to exercise his right of appeal pursuant to the Memorandum of appeal already on record. For clarity, the matter shall proceed before the trial court to conclusion.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 22ND DAY OF MARCH, 2022.

..................................

R. LAGAT-KORIR

JUDGE

RULING DELIVERED VIRTUALLY IN THE PRESENCE OF MR. ODOUR FOR THE APPELLANT, AND KIPROTICH (COURT ASSISTANT) AND IN THE ABSENCE OF MR. NYAMBATI FOR THE RESPONDENTS. RULING EMAILED TO THE PARTIES AT: -

Nyambatiadv@gmail.comfor the Respondent info@wachirawekhombaaim.com for the Appellant