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ELCDismissedNot stated in the judgment text (application of 14th November 2019 in an appeal against consolidation in Mombasa CMCC ELC No. 19 of 2019)· [2020] KEELC 1665 (KLR)

Abud Mbarak Abu v WAKF Commissioners of Kenya & 9 others [2020] KEELC 1665 (KLR)

Environment and Land Court
20 July 2020
1,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 14th November 2019 brought by Abud Mbarak Abud, described as Appellant/Applicant, under Sections 1A and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking a stay of proceedings in Mombasa CMCC ELC No. 19 of 2019 consolidated with Mombasa CMCC No. 400 of 2019 pending the hearing and determination of an appeal. The applicant deponed that he had occupied Plot Mombasa Block XVI/1511 running a timber yard for over ten years, that his yard was demolished in execution of a default judgment in CMCC No. 400 of 2019 entered without service, and that he had obtained a reinstatement order. He opposed the transfer and consolidation of the two files by Hon. Kyambia, SPM, on 11.10.2019, contending that a decided suit cannot be consolidated with a pending one and that only the High Court or the Environment and Land Court has jurisdiction to transfer land case files, raising a purported conflict between Articles 162 and 169 of the Constitution. The court, applying the principles in Ringera J's Global Tours & Travels decision, held that stay of proceedings is a grave judicial action with a high and stringent test, distinct from stay of execution, because it interferes with access to justice and fair trial rights. It found that the ruling appealed against concerned only consolidation, the main issues remained undetermined, the applicant failed to demonstrate an arguable appeal, and a stay would merely delay the lower court matters. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether a stay of proceedings pending appeal should be granted over the consolidated suits

Holding

The application was dismissed. Stay of proceedings is a grave judicial action with a high and stringent test; the applicant failed to demonstrate an arguable appeal, and a stay would only delay matters pending before the lower court where the main issues remain undetermined.

Reasoning

The court distinguished stay of proceedings from stay of execution, noting that staying proceedings impedes access to justice and fair trial rights. Applying the Ringera J factors, the court observed that the suits are over the same subject matter and fixed for pre-trial directions. Because the ruling appealed against dealt only with consolidation and the substantive disputes remain to be heard, granting a stay would serve only to delay the lower court matters. The applicant did not show an arguable appeal, so the discretion was declined.

p. 2

Legal principles established

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  • Stay of proceedings pending appeal is a matter of judicial discretion exercised in the interests of justice; the test is high and stringent because stay of proceedings seriously interferes with the right of access to justice, the right to be heard without delay and the right to a fair trial.
  • In deciding whether to stay proceedings the court weighs the need for expeditious disposal of cases, the arguability (not probable success) of the intended appeal, the scarcity of judicial time, and whether the application was brought expeditiously.

Court orders

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  1. 1.The Notice of Motion dated 14th November 2019 is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51
  • Constitution of Kenya, 2010Articles 162 and 169

Cases cited (1)

  • In the matter of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
On appeal from
Chief Magistrate's Court, Mombasa
Mombasa CMCC ELC No. 19 of 2019 consolidated with Mombasa CMCC No. 400 of 2019
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules (inherent jurisdiction of the court on appeal)

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, "Abud Mbarak Abu v WAKF Commissioners of Kenya & 9 others [2020] KEELC 1665 (KLR)", Case Analysis (2020). Not stated in the judgment text (application of 14th November 2019 in an appeal against consolidation in Mombasa CMCC ELC No. 19 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1665/eng@2020-07-20

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