Laureen M. Isiaho Sawe p/a Isiaho Sawe & Company Advocates v Teresa Chebichii Rutto & 2 others [2021] KEELC 4757 (KLR)
The bottom line
#The Eldoret Environment and Land Court refused to pause a land case pending appeal, because the defendants delayed filing and the issues could be resolved at trial anyway.
What this practically means
#Executive summary
#Key legal issues
#Threshold for stay of proceedings pending appeal
The applicant must demonstrate a prima facie arguable appeal, that the application was filed expeditiously, and sufficient cause that it is in the interest of justice to grant the stay
The court applied the three-pronged test from Kenya Power & Lighting Co. Ltd vs Esther Wanjiru Wokebii and Ringera J's formulation in Re Global Tours & Travel Ltd. The applicants did not explain the delay between the ruling of 6th August 2020 and the application of 14th October 2020, and the issue raised in the appeal could be dealt with at the hearing of the main trial.
Whether the appeal would be rendered nugatory without a stay
No - the issue the applicants sought to raise on appeal, concerning the validity of the agreement, could be determined at the hearing of the main suit
The court found the applicants had established that the appeal would be rendered nugatory, but nonetheless considered that the issue raised and declined by the court could adequately be dealt with at the trial. Courts should not be quick to strike out suits on technicalities, and counsel should not burden the court with side applications that delay determination of the main suit.
Effect of the consent of 26th June 2020
The parties had envisaged hearing of the matter on merit; the application was an afterthought calculated to derail the hearing
The respondent contended that by the consent dated 26th June 2020 the parties had committed to hearing the matter on merit, and that the defendants had on 30th September 2020 sought time to comply with Order 11, indicating intention to proceed. The court noted the consent was entered to fast-track the hearing of the main suit and that the application sought to circumvent it.
Legal principles established
#- Whether to grant a stay of proceedings pending appeal is a judicial discretion to be exercised in the interest of justice, weighing factors such as expeditious disposal, arguability of the appeal, judicial time and expedition of the application
- Stay of proceedings should be imposed sparingly and only in exceptional cases
Court orders
#- 1.The defendant's application dated 13th October 2020 for stay of proceedings is dismissed
- 2.Costs of the application to the plaintiff
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and the inherent jurisdiction under section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laureen M. Isiaho Sawe p/a Isiaho Sawe & Company Advocates v Teresa Chebichii Rutto & 2 others [2021] KEELC 4757 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4757/eng@2021-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.