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ELCDismissedKisumu H.C.C. No. 143 of 2004· [2017] KEELC 2665 (KLR)

Zainul Velji v Eri Limited [2017] KEELC 2665 (KLR)

Environment and Land Court
22 June 2017
1,479 words in judgment
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The bottom line

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The court refused to pause the case because the defendant showed no loss, delayed three months, and appealed the wrong order.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu (S.M. Kibunja, J) delivered on 22nd June 2017 in an application by Eri Limited, the Defendant, by notice of motion dated 28th July 2016 under Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Defendant sought a stay of proceedings in Kisumu H.C.C. No. 143 of 2004 pending the hearing and determination of its appeal, Kisumu C.A.C.A No. 57 of 2016, against the court's ruling of 27th April 2016, arguing that the appeal was arguable and would be rendered nugatory, and relying on Article 40(6) of the Constitution. The Plaintiff, Zainul Velji, opposed the application through grounds of contention that the ruling of 27th April 2016 merely dismissed the Defendant's application and conferred no benefit capable of being stayed; that the formal proof proceedings sought to be stayed flowed from orders of 1st August 2011 against which no appeal had been preferred; that the Defendant failed to demonstrate substantial loss; and that the application was filed after an unexplained delay of about three months. The court framed two issues: whether the Defendant satisfied Order 42 Rule 6, and costs. It held that the ruling of 27th April 2016 conferred no benefit that could be stayed, that the Defendant showed no substantial loss, that the appeal against the 2016 ruling could not support a stay of the unappealed 2011 orders, and that there was unexplained delay. The notice of motion was dismissed with costs.

Key legal issues

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01

Whether the Defendant satisfied the conditions for stay of proceedings under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The application failed on all counts: no benefit capable of being stayed existed in the ruling of 27th April 2016, no substantial loss was demonstrated, and the application was filed after unexplained delay of about three months.

Reasoning

The court found the ruling of 27th April 2016 merely dismissed the Defendant's notice dated 29th January 2013 and conferred no benefit on any party; its only positive element was an order for costs. The Defendant did not demonstrate substantial loss if a bill of costs were taxed and executed. Further, the formal proof proceedings sought to be stayed flowed from the orders of 1st August 2011, against which no appeal had been preferred, so the appeal against the 2016 ruling could not found a stay of those proceedings. The three-month delay in filing the motion was also unexplained.

p. 3
02

Whether the pending appeal against the ruling of 27th April 2016 could support a stay of the formal proof proceedings

Holding

No. The formal proof proceedings were ordered on 1st August 2011, and no appeal was preferred against those orders; the notice of appeal relating to the 2016 ruling cannot be the basis of staying the 2011 orders.

Reasoning

The Plaintiff's counsel submitted that the formal proof proceedings stemmed from the ruling of 1st August 2011, under which the Plaintiff was at liberty to fix the matter for formal proof on prayers for general damages for trespass and mesne profits. No appeal was preferred against those orders. The court concurred, holding that a notice of appeal against a later ruling (27th April 2016) cannot be used to stay earlier, unappealed orders, and accordingly found the motion devoid of merit.

p. 3
03

Costs

Holding

The application was dismissed with costs to the Plaintiff.

Reasoning

Having found the notice of motion dated 28th July 2016 without merit on both the merits and the question of delay, the court exercised its discretion on costs in favour of the successful Plaintiff, dismissing the motion with costs under the issues the court itself framed for determination.

p. 3

Legal principles established

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  • An order that confers no benefit on any party cannot be stayed pending appeal
  • An applicant for stay must show the substantial loss he is likely to suffer if stay is not granted
  • An application for stay must be filed without unreasonable and unexplained delay

Court orders

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  1. 1.The Defendant's notice of motion dated and filed on 28th July 2016 seeking stay of proceedings is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of KenyaArticle 40(6)

Cases cited (7)

  • National Bank of Kenya Limited & another v Geoffrey Wahome Mwotia
    [2016] eKLR
  • Family Bank Limited v Martin Kimeu & Another
    [2016] eKLR
  • Nairobi City Council v Rosley
    [2002] 2 EA 487
  • David Thiongo v Market Family Emporium
    Nairobi CAC App. No.47 of 2007 (UR 38/2007)
  • Giant Holdings Limited v Kenya Airports Authority
    [2010] eKLR
  • Venture Capital & Credit Ltd v Consolidated Bank of Kenya Ltd
    Nairobi CA C.App.No.349 of 2003 (174/03 UR)
  • ABN AMRO Bank N.V. v Monde Foods Limited
    CA C. App.No.15 of 2002 (UR 11/02)
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zainul Velji v Eri Limited [2017] KEELC 2665 (KLR)", Case Analysis (2017). Kisumu H.C.C. No. 143 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2665/eng@2017-06-22

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