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Court of AppealDismissedCivil Application No. E039 of 2024 (as gleaned from the Motion dated 6th December 2023)· [2024] KECA 563 (KLR)

M/S Karsan Ramji & Sons Limited v Athumani & another (Suing for and on behalf of the Wamwanyundo Clan & 6 others (Civil Application E034 of 2023) [2024] KECA 563 (KLR)

Court of Appeal of Kenya
24 May 2024
AMA. K. MurgorKLDr. K. I. LaibutaGOG. V. Odunga
4,455 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a Malindi land trial, confirming that a delayed counterclaim can still be pursued as a separate suit.

What this practically means

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Executive summary

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Karsan Ramji & Sons Limited, a defendant in Malindi Environment and Land Case No. 230 of 2018 brought by the Wamwanyundo Clan claiming beneficial ownership of a suit property, sought leave before the Environment and Land Court to amend its defence to include a counterclaim after the plaintiffs' witnesses had testified. Odeny, J. dismissed that application on 20th November 2023, holding that the amendment was late, introduced a new cause of action and would prejudice the plaintiffs. The applicant lodged a Notice of Appeal and moved the Court of Appeal at Mombasa under rule 5(2)(b) of the Court's Rules for a stay of the trial proceedings pending the intended appeal. The Court restated the settled twin conjunctive principles: the intended appeal must be arguable, and it must be shown that it would be rendered nugatory absent stay. On the first limb, the Court found the appeal arguable, holding that an allegation that a trial judge misdirected herself on discretion is a matter the Court may interrogate, and that a single bona fide arguable ground suffices. On the second limb, the Court held that a higher threshold applies to stay of proceedings than to stay of execution because staying proceedings derails pending litigation and impinges on the right of access to justice under Article 159(2)(d). Since a counterclaim is by nature a separate suit that can stand on its own, the applicant had an avenue to pursue its claim even if the trial concluded. The application was dismissed with costs to the 1st respondents.

Key legal issues

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01

Invocation of the Court's jurisdiction under rule 5(2)(b) and the twin principles

Holding

The applicant had filed a Notice of Appeal, properly invoking jurisdiction, and the twin principles of arguability and nugatory-ness apply conjunctively.

Reasoning

The Court restated the settled principles: an applicant must have a pending appeal or expressed intention to appeal by filing a Notice of Appeal; must show the appeal is arguable, not frivolous; and must show the appeal would be rendered nugatory absent stay. Both conditions must be satisfied, and failure of either disposes of the application.

p. 4
02

Whether the intended appeal is arguable

Holding

The intended appeal, alleging that the learned Judge erred in declining leave to amend the defence to include a counterclaim, is arguable and not frivolous.

Reasoning

Discretion is to be exercised judiciously, not capriciously, and an allegation that discretion was misdirected is a matter the Court would be entitled to interrogate. At the interlocutory stage the Court need not form a conclusive view; the applicant need only point out arguable grounds. The Court found the appeal arguable without embarrassing the bench seized of the main appeal.

p. 5
03

Whether the intended appeal would be rendered nugatory absent stay of proceedings

Holding

The applicant failed to demonstrate nugatory-ness; the threshold for stay of proceedings is higher than for stay of execution, and the counterclaim, being a separate suit, could stand on its own.

Reasoning

An order staying proceedings derails pending proceedings, interferes with trial court schedules and may curtail the respondent's right to a hearing without unreasonable delay under Article 159(2)(d). Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or compensable by damages. A counterclaim is a separate suit incorporated in the defence only as a matter of convenience, so the applicant had an avenue to pursue its claim independently.

p. 7

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin conjunctive conditions of an arguable appeal and that the appeal would be rendered nugatory absent stay; failure on either leads to dismissal
  • A higher threshold is required on the nugatory limb for stay of proceedings than for stay of execution, because staying proceedings derails pending proceedings and interferes with access to justice
  • A single bona fide arguable ground suffices for the arguability condition; the applicant need not demonstrate a multiplicity of arguable issues
  • The burden lies on the applicant to show that, if successful, it would have no avenue of pursuing its claim, and each stay of proceedings case must turn on its own facts

Court orders

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  1. 1.The Notice of Motion dated 6th December 2023 seeking stay of proceedings in Malindi Environment and Land Case Number 230 of 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st respondents
On appeal from
Environment and Land Court, Malindi
Malindi Environment and Land Case Number 230 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "M/S Karsan Ramji & Sons Limited v Athumani & another (Suing for and on behalf of the Wamwanyundo Clan & 6 others (Civil Application E034 of 2023) [2024] KECA 563 (KLR)", Case Analysis (2024). Civil Application No. E039 of 2024 (as gleaned from the Motion dated 6th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/563/eng@2024-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.