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ELCDismissedNairobi HCCC (judgment delivered 29/4/2013; related suits Nairobi HCCC No. 6054/1991 and Nairobi HCCC 1181/1992)· [2021] KEELC 4098 (KLR)

Southdowns Developers Limited v Haithar Haji Abdi & another [2021] KEELC 4098 (KLR)

High Court of Kenya
4 March 2021
BEB M Eboso
836 words in judgment
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The bottom line

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A Kenyan court cannot stay a concluded case under Section 6 of the Civil Procedure Act; once judgment is final, the winning party may proceed to execution.

What this practically means

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Executive summary

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This ruling by B M Eboso J deals with two duplicate applications dated 25/9/2020 and 15/10/2020 filed by the judgment debtor in a suit in which Mutungi J had, on 29/4/2013, ordered eviction, a permanent injunction, general damages of Ksh 6,300,000 with interest, and costs in favour of the plaintiff. The judgment debtor's appeal and review attempts having failed, and the matter being at execution, the applicant sought stay of suit under Section 6 of the Civil Procedure Act, contending that Nairobi HCCC No. 6054/1991, consolidated with Nairobi HCCC 1181/1992, had been filed earlier and involved similar issues with a direct bearing on this suit. The decree-holder opposed, arguing there was no pending appeal or review, that the parties in the related suits were not the same, and that the applications were an abuse of process. The court framed a single question: whether there were issues pending trial both in this suit and the related suits. It held there were none, since the suit had been tried and finally determined, the appeal to the Court of Appeal exhausted, and the review application lost. Section 6 of the Civil Procedure Act relates to pending suits, not fully determined suits, so the court lacked a proper legal basis to grant a stay. Both applications were rejected with costs to the judgment debtor.

Key legal issues

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01

Whether stay of suit can be granted under Section 6 of the Civil Procedure Act in a suit that has already been determined

Holding

No; Section 6 applies only to pending suits, and where a final judgment exists and appellate and review avenues are exhausted, the court lacks a legal basis to grant a stay of suit.

Reasoning

The court noted that Mutungi J rendered judgment in April 2013 after full trial, leaving no issues pending trial or determination. The judgment debtor's appeal to the Court of Appeal was unsuccessful and his review application before Mutungi J was also lost. The matter was at the stage of execution. Since Section 6 is confined to pending suits, the court held it had no jurisdiction or proper legal basis to stay a fully determined suit.

p. 2

Legal principles established

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  • Section 6 of the Civil Procedure Act governs stay of pending suits only, and cannot be invoked where the suit has already been tried and determined through a final judgment

Court orders

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  1. 1.The two applications by the judgment debtor dated 25/9/2020 and 15/10/2020 are rejected for failure to satisfy the criteria for a stay order under Section 6 of the Civil Procedure Act
  2. 2.The judgment debtor shall bear costs of the two applications

Authorities

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Legislation

  • Civil Procedure ActSection 6
Jurisdiction invoked
Section 6 of the Civil Procedure Act

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, "Southdowns Developers Limited v Haithar Haji Abdi & another [2021] KEELC 4098 (KLR)", Case Analysis (2021). Nairobi HCCC (judgment delivered 29/4/2013; related suits Nairobi HCCC No. 6054/1991 and Nairobi HCCC 1181/1992). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4098/eng@2021-03-04

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