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ELCDismissedNairobi Environment and Land Court Cause No. 865 of 2016· [2021] KEELC 4723 (KLR)

Hunjan v Khan (Environment & Land Case 865 of 2016) [2021] KEELC 4723 (KLR)

Environment and Land Court
30 June 2022
EWE. K. Wabwoto
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a land case because the party waited nearly four years without filing its appeal, showing delays kill stay applications.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi on the Plaintiff's Notice of Motion dated 20th June 2022, which sought a stay of proceedings in Nairobi ELC Cause No. 865 of 2016 pending the hearing and determination of an intended appeal from the ruling and orders of Justice Eboso delivered on 25th September 2018. The Defendant opposed the application through a Replying Affidavit sworn on 27th June 2022, arguing that the application was filed after a last adjournment, was designed to frustrate proceedings, and that no sufficient explanation was offered for the delay in filing it. The court framed a single issue: whether the Applicant had satisfied the criteria for a stay of proceedings. Applying the Global Tours & Travels test, the court held that stay of proceedings is a grave judicial action that interferes with the right of access to justice and fair hearing, so the threshold is high and stringent. The court found the application was not brought expeditiously: the ruling was delivered on 25th September 2018, a Notice of Appeal was filed on 26th September 2018, but no memorandum of appeal was ever filed and no stay had issued from the Court of Appeal. Relying on Pius Kawinzi Kithoka v Jacinter Kavindu Makau, the court held that equity does not aid the indolent, that a stay would be counterproductive and delay finalisation of the case, and that litigation should not be protracted unduly. The application was dismissed with costs to the Defendant.

Key legal issues

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Whether the criteria for stay of proceedings pending appeal were satisfied

Holding

The application failed: the applicant did not file it expeditiously, gave no adequate explanation for the delay, filed no memorandum of appeal and obtained no stay from the Court of Appeal.

Reasoning

The court applied the Global Tours & Travels test requiring expeditious application, arguability of the intended appeal and weighing of pros and cons against expeditious disposal of cases. The ruling sought to be appealed was delivered on 25 September 2018, the Notice of Appeal was filed the following day, yet nearly four years passed without a memorandum of appeal or any stay from the Court of Appeal. Equity does not aid the indolent, and a stay would delay finalisation of the suit to the detriment of the Defendant.

p. 3

Legal principles established

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  • Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation; the test for its grant is high and stringent.
  • The court's power to stay proceedings pending appeal derives from Order 42 rule 6 of the Civil Procedure Rules and the inherent jurisdiction under section 3A of the Civil Procedure Act.

Court orders

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  1. 1.The Application dated 20th June, 2022 is dismissed
  2. 2.Costs of the application awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsections 1A and 1B
  • Constitution of KenyaArticle 159; Article 159(2)(a)(b)(c) and (d)

Cases cited (4)

  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No 43 of 2000
  • George Oraro vs. Kenya Television Network Nairobi HCCC No. 151 of 1992
  • Christopher Ndolo Mutuku & another v CFC Stanbic Bank Ltd (2015) eKLR
    (2015) eKLR
  • Pius Kawinzi Kithoka v Jacinter Kavindu Makau [2012] eKLR
    [2012] eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules and the inherent jurisdiction in section 3A 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, "Hunjan v Khan (Environment & Land Case 865 of 2016) [2021] KEELC 4723 (KLR)", Case Analysis (2022). Nairobi Environment and Land Court Cause No. 865 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4723/eng@2021-06-30

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