John Mwangi Kamau v David Mwaura Nduruhi [2019] KEELC 1795 (KLR)

The court applied the proviso to Section 79G, requiring the applicant to show good and sufficient cause. The applicant explained the 9-day delay as time taken to obtain counsel on the impact of the Ruling. The court found the delay not inordinate, considered the Memorandum of Appeal and found it arguable, and found no prejudice since the Respondent remained in occupation and enjoying the injunctive orders. Reliance was placed on Edward Kamau v Hannah Mukui on the right of appeal as anchored in Articles 48 and 50(1) of the Constitution.

The court reasoned that staying the injunctive orders would effectively undo them even before the appeal is heard, defeating the purpose of the appeal. Since the Respondent was allegedly in occupation of the premises before Thika CMCC No. 59 of 2017 was filed, it was not prudent to grant stay. The discretion to stay is acknowledged as discretionary but must be exercised judicially and on sound legal principles.

Section 6 prevents multiplicity of suits where the matter in issue is directly and substantially the same in a previously instituted suit between the same parties or parties claiming under the same title. The court distinguished the issue in Nairobi ELC No. 17 of 2014 (specific performance against the estate's beneficiaries) from the issue here (whether leave to appeal out of time should issue). The court further found the stay application was not brought in good faith, since the Respondent/Applicant filed CMCC No. 59 of 2017 aware of the Milimani suit and obtained favourable orders.