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ELCDismissedELC Case No. 20 of 2019 (OS)· [2021] KEELC 3334 (KLR)

David Kinyua v Moses Muthuri Mukindia & 5 others [2021] KEELC 3334 (KLR)

Environment and Land Court
13 May 2021
LMLucy N. Mbugua
1,287 words in judgment
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The bottom line

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A Kenyan landowner's late bid to pause a Magistrate Court case days before judgment was rejected, with costs awarded against him.

What this practically means

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Executive summary

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The plaintiff/applicant in ELC Case No. 20 of 2019 (OS) at Meru moved the court by an application dated 4.2.2021 seeking a stay of proceedings in ELC Case No. 1B of 2019 at Githongo law courts, where the 1st defendant had sued him for permanent injunction, eviction and mandatory injunction over land parcel LR No. Abothuguchi/Katheri/4046. The applicant argued that multiplicity of suits over the same subject matter should be avoided, that this court had issued injunction and inhibition orders over the locus in quo, and that eviction orders would render the present suit nugatory. The 1st respondent opposed, pointing out that the Githongo suit was filed on 14.1.2019, before the present suit, that the applicant had already filed his defence there, that the injunctive orders relied on had lapsed or been superseded by a consent of 9.7.2019 maintaining status quo, and that the Githongo matter was set for judgment on 17.5.2021 with parties having closed their cases and filed submissions. The 4th, 5th and 6th defendants did not oppose. The court framed one question: whether to stay the proceedings before the Githongo magistrate's court, particularly delivery of judgment. Applying Christopher Ndolo Mutuku and Re Global Tours & Travel Ltd, the court held that a stay is discretionary, to be exercised in the interest of justice, and that delay is a relevant factor. The applicant had waited over two years and could not explain why the application came only when judgment was imminent. The overall impression did not arouse compulsion in favour of the applicant. The application was dismissed with costs to the 1st respondent.

Key legal issues

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Whether a stay of proceedings in the Githongo magistrate's court should be granted

Holding

The application was dismissed because it was filed late in the day, more than two years after the Githongo suit was instituted and just before judgment, and the applicant did not explain the delay

Reasoning

The court applied the principles in Christopher Ndolo Mutuku and Re Global Tours & Travel Ltd: a stay is discretionary and depends on the overall impression from the totality of circumstances. The Githongo suit predates the present suit and the applicant knew of it from inception. The injunction orders relied on had been superseded by a consent on status quo. The unexplained delay and the imminence of judgment meant no compulsion to stay; discretion was declined.

p. 2

Legal principles established

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  • Whether to grant a stay of proceedings is a matter of judicial discretion to be exercised in the interest of justice, weighing pros and cons including expeditious disposal, arguability, judicial time and expedition of the application
  • Delay in bringing an application for stay of proceedings is a factor the court must take into account

Court orders

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  1. 1.The application dated 4.2.2021 is dismissed
  2. 2.Costs to the 1st respondent

Authorities

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Cases cited (4)

  • Christopher Ndolo Mutuku & Another vs. CFC Stanbic Bank Ltd
    (2015) eKLR
  • Mukunya Mugo 'A' & another v Elizabeth Mugure Mukunya
    [2019] eKLR
  • Ezekiel Mule Musembi v H. Young & Company (E.A) Limited
    [2019] eKLR
  • Re Global Tours & Travel Ltd
    HCWC No. 43 of 2000
Jurisdiction invoked
Inherent jurisdiction to stay proceedings before a subordinate court, under the court's discretion in the interest of justice

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, "David Kinyua v Moses Muthuri Mukindia & 5 others [2021] KEELC 3334 (KLR)", Case Analysis (2021). ELC Case No. 20 of 2019 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3334/eng@2021-05-13

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