Keith & 3 others v Monari & 3 others (Civil Case E278 of 2020) [2021] KEHC 355 (KLR) (Commercial and Tax) (9 December 2021) (Ruling)
Neutral citation number: [2021] KEHC 355 (KLR)
Republic of Kenya
Civil Case E278 of 2020
WA Okwany, J
December 9, 2021
Between
Kenneth Hamish Wooler Keith
1st Applicant
Ashwini Bhandari
2nd Applicant
Nigel Vaughan Jeremy
3rd Applicant
Julius Wako
4th Applicant
and
Evans Monari
1st Respondent
Anthony Njogu
2nd Respondent
Sean Omondi
3rd Respondent
Njau Mukuha
4th Respondent
Ruling
1.The defendants/applicants herein filed the application dated 20th April 2021 seeking the following orders; -
2.The application is brought under Article 165(6) of the Constitution, Order 42 Rule 6, Order 49 Rule 7 (2) and Order 51 rule 1 of the Civil Procedure Rules.
3.The application is supported by the affidavit of the 1st defendant Mr. Kenneth Hamish Wooler Keith and is based on the grounds that: -
4.The respondents opposed the application through the replying affidavit of Mr. Evans Monari, the 1st Plaintiff herein, who states that the application aims at frustrating the expeditious hearing and disposal of the main dispute between the parties. He contends that the appeal has no merit and will not be rendered nugatory if the matter proceeds for hearing before this court. He further states that the defendants have not demonstrated that they will suffer substantial loss and injustice should the stay not be granted.
5.The application was canvassed by way of written submissions which I have considered. The main issue for determination is whether the applicant has made out a case for the granting of orders for stay of proceedings pending the hearing and determination of the appeal.
6.The threshold to be observed in making orders 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, as follows: -
7.In Re Global Tours & Travel Ltd HCWC No. 43 of 2000 Ringera, J (as he then was) held that: -
8.The applicants’ case is that the impugned order of the Deputy Registrar has the effect of depriving of them of the forum to prosecute their application dated 1st March 2021. According to the applicants, the order infringed on their right to fair hearing as recognized under Article 50 of the Constitution. They further contended that the appeal will be rendered nugatory if this application is not allowed.
9.On their part, the respondents contended that the application is intended to frustrate the expeditious hearing and disposal of the dispute between the parties. They submitted that the appeal has no merit and that the defendants have not demonstrated that they will suffer substantial loss and injustice should the stay not be granted.
10.In David Morton Silverstein vs. Atsango Chesoni Civil Application No. Nai. 189 of 2001 [2002] 1 KLR 867; [2002] 1 EA 296 the Court of Appeal citing Kenya Commercial Bank Ltd vs. Benjoh Amalgamated Ltd & Another Civil Application No NAI 50 of 2001 held that it is not the law that a stay of proceedings cannot be granted but that each case depends on its own facts.
11.Further, in Niazons (Kenya) Ltd. vs. China Road & Bridge Corporation (Kenya) Ltd. Nairobi (Milimani) HCCC No. 126 of 1999 Onyango-Otieno, J (as he then was) held that: -
12.The Court of Appeal in Wachira Waruru & Another vs. Francis Oyatsi Civil Application No. Nai. 223 of 2000 [2002] 2 EA 664 held that: -
13.The principle that emerges from the above cited cases is that an order for stay of proceedings is discretionary and that an applicant should provide sufficient grounds for the granting of the order. In the present case, it was not disputed that an appeal has been lodged against the impugned decision of the Deputy registrar.
14.My finding is that the applicant’s right of appeal is a fundamental right that is closely linked to the right to a fair trial that is enshrined under the Constitution. I find that, in the circumstances of this case, disallowing the instant application may render the appeal nugatory should the applicants eventually succeed on the appeal.
15.I therefore find that it will be in the interest of justice to stay the proceeding herein pending the hearing and determination of the appeal. Consequently, I allow the application dated 20th April 2021 with orders that the costs of the application shall be in the cause.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF DECEMBER 2021 IN VIEW OF THE DECLARATION OF MEASURES RESTRICTING COURT OPERATIONS DUE TO COVID-19 PANDEMIC AND IN LIGHT OF THE DIRECTIONS ISSUED BY HIS LORDSHIP, THE CHIEF JUSTICE ON THE 17TH APRIL 2020.W. A. OKWANYJUDGEIn the presence of: -Ms Mutua for Mbalu for Plaintiffs.Mr. Muchiri for Defendants/ApplicantsCourt Assistant: Margaret