1.The applicants filed a notice of motion dated March 9, 2022 under sections 1, 1A, 3, 3A of the Civil Procedure Act and Order 42 rule 6(1) of the Civil Procedure Rules, seeking stay of further proceedings pending the hearing of the intended appeal to the Court of Appeal against the ruling delivered on September 23, 2021.
2.The application is premised on the grounds on its face and the affidavit sworn on March 9, 2022 by the late Gathua and the subsequent supplementary affidavit sworn on October 28, 2022 by Stephen Gathua Njoroge, a director of the 2nd applicant, to sustain the application following the demise of Gathua.
3.The applicants argued that the intended appeal is arguable and will be rendered nugatory if stay is not granted. This, they asserted, is because the intended appeal concerns the jurisdiction of this court to determine the proceedings, given the Attorney General’s opinion to the petitioner.
4.The applicants stated that they have been diligent to have the appeal expeditiously heard and determined but despite their oral application on September 23, 2021 for typed copies of proceedings, proceedings have not been availed to enable them to file the record of appeal. Similarly, the applicants argued that the application was filed timeously on March 9, 2022, two days after the court directed that a formal application be filed. On the other hand, the petitioner filed the petition in 2006 but did not pursue it for nine years. For that reason, the respondents cannot attribute the delay in hearing the petition to them.
6.The Statutory Manager opposed the application through a replying affidavit sworn on March 20, 2022 by William Okari Masita, the Managing Trustee of the Policy Holder Compensation Fund, the Statutory Manager of United Insurance Company Limited. The Statutory Manager also filed written submissions dated May 9, 2022, urging the court to dismiss the motion with costs.
7.The petitioner filed a replying affidavit sworn on April 5, 2022 by Godfrey K Kiptum, the Commissioner of Insurance and Chief Executive Officer (CEO) of the Insurance Regulatory Authority as well as written submissions dated June 5, 2022.
9.The respondents asserted that whereas this is an application for stay of proceedings pending appeal, it has been erroneously brought under Order 42 Rule 6 of the Civil Procedure Rules which deals with stay of execution. The respondents contended that the applicants lack capacity to seek stay of proceedings as they are not principal parties in the cause.
11.On whether there is an arguable appeal, the respondents argued that it is not within the jurisdiction of this court to determine whether there is an arguable appeal in view of the impugned ruling determined by a court of concurrent jurisdiction. This is because the grounds in support of the application go to the merit of the intended appeal. Moreover, this is not an application for review.
12.The respondents submitted that the Judge was correct in finding that the Attorney General’s report was not properly introduced and that it was not binding to the court. The respondents argued, therefore, that the applicants had failed to demonstrate arguable points which would be rendered nugatory if stay was not granted.
14.The respondents added that although the petitioner instituted Civil Appeal No 279 of 2009, they were not responsible for the delay in its conclusion as the matter was subject to the court’s diary.
15.The respondents contended, therefore, that granting stay of proceedings will be prejudicial as it will further delay the conclusion of this matter which has been ongoing for over fifteen years. Furthermore, they argued, this matter is of great public interest since the public is affected by the insolvency of the company.
19.I have considered the application the response and arguments by counsel for the parties. The application seeks stay of proceedings pending hearing and determination of the intended appeal to the Court of Appeal. The applicants’ application to have the petition terminated following the advisory opinion by the Attorney General was dismissed in a ruling dated September 23, 2021. The applicant’s counsel made an oral application for copies of proceedings and the ruling for purposes of appeal. The applicants also lodged a notice of appeal signifying their intention to appeal.
20.When this matter came up for directions on March 7, 2022, the applicants’ counsel informed the court that they had lodged their notice of appeal against the ruling and wanted proceedings stayed pending determination of the intended appeal. The court directed that a formal application be filed for consideration. The applicants filed this application seeking stay of further proceedings pending the hearing of the intended appeal.
21.The applicant’s case is that the intended appeal is arguable and will be rendered nugatory if stay is not granted. They argued that the intended appeal concerns the jurisdiction of this court to determine the proceedings, given the Attorney General’s advisory opinion to the petitioner. The applicants stated that despite their advocate’s oral application for typed proceedings made in court on September 23, 2021 when the ruling was delivered, proceedings have not been availed to enable them to file the record of appeal.
22.The respondents opposed the application arguing that it is flawed, that no valid notice of appeal was filed, that the application does not meet the conditions for granting stay of proceedings and that there is no proof that the intended appeal will be rendered nugatory.
23.The issue for determination is whether the applicants have met the threshold for granting stay of proceedings. The application is brought under Order 42 rule 6 of the Civil Procedure Rules. although Sub rule 1 mentions stay of both proceedings and execution, Sub rule 2 deals exclusively with stay of execution pending appeal.
24.In William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 Others  eKLR, the court outlined conditions one must satisfy for grant of stay of proceedings. These were that: there must be an appeal pending before the higher court; since there is no express provision allowing for such an application, the applicant should explain why the stay has not been sought in the higher court due to the potential of an application for stay of proceedings causing inordinately delay the trial; the applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; the applicant must demonstrate that the appeal would be rendered nugatory if the stay of proceedings is not granted; the applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings necessary as opposed to having the case concluded and all grievances arising taken up in a single appeal and the applicant must demonstrate that the application for stay was filed expeditiously and without delay.The authors of Halsbury’s Laws of England, 4th Edition, Vol 37 state at p 330 thus:
25.Whether or not to grant stay of proceedings is an exercise of discretion and, like all other discretions, it must be exercised judicially and in the interest of justice. This was stated in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No 43 of 2000) as follows:
27.In this application, the applicants have merely stated that the appeal will be rendered nugatory if stay is not granted. The applicants have also not demonstrated that there is an appeal pending. This fact is admitted by the applicants themselves that a record of appeal has not been filed because typed copies of proceedings have not been supplied. This blame, it would appear, is being passed over to the court. However, the applicants apart from stating that their advocate orally applied for proceedings in court, no evidence has been placed before the court to show that the oral request was followed up with a letter inquiring whether typing of proceedings had been concluded or that they paid for the proceedings. They have not shown that they have been on the issue of proceedings since when the oral application was made.
28.Further still, the applicants have not shown that this application was presented promptly and without delay. The ruling was delivered on September 23, 2021. A perusal of the record shows that counsel for the applicant made an oral application for stay of proceedings immediately the ruling was delivered. The court declined to grant stay advising counsel to file a formal application and serve so that the respondents could respond before a decision was made. No application was however filed until March 9, 2022, about six months later and only after the court again directed that a formal application be filed. No attempt was made to explain why the applicants took six months to file this application.
29.An applicant seeking stay of proceedings must demonstrate exceptional circumstances which would persuade the court to make an order for stay of proceedings instead of allowing the case to proceed to hearing and conclusion and then an appeal filed against all grievances that may arise.
30.Having considered the application and arguments by parties, the conclusion I come to is that the applicants have not met this high threshold for granting stay of proceedings in this case. They did not take steps to move the court promptly and have not shown exceptional circumstances to persuade the court to grant stay of these proceedings.
31.Consequently, the application dated March 9, 2022 is declined and dismissed. Each party will, however, bear their own costs.