Good News Church of Africa v Board of Management Eldoret Secondary School [2021] KEELC 3247 (KLR)

The applicant invoked Section 3A of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules, which permit the court appealed from to order stay of proceedings for sufficient cause. The court accepted the power exists but stressed that stay of proceedings is a grave judicial action, impinging on access to justice and fair trial, so the test is high and stringent and the discretion must be exercised sparingly.

The applicant attached only a notice of appeal; there was no evidence any appeal had actually been lodged in the Court of Appeal. The intended appeal concerned dismissal of an application to further amend the defence to enjoin co-defendants, which the court had dismissed because a defendant cannot impose a co-defendant on a plaintiff who has no claim against that party. No compelling reason or prima facie case was established.

The ruling dismissing the application for further amendment was delivered on 17th November 2020 and the application for stay was filed on 8th December 2020, a period of about three weeks. The court found this constituted no unreasonable delay, consistent with authority that delay is a factor but not necessarily the predominant one. Nevertheless, delay was not decisive because the other grounds failed.

Substantial loss is a key consideration in stay applications, and the applicant bore the burden of establishing the loss it would suffer. The applicant showed none. Moreover, the very parties it sought to enjoin as co-defendants were already sued by the applicant in Eldoret E&L Originating Summons Cause No. 8 of 2020, providing an alternative forum. Staying these proceedings would be counterproductive and would delay finalization of the case.