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ELCDismissedNot stated on the face of the judgment (Appeal from Milimani CMCC No. E7272 of 2020)· [2022] KEELC 1743 (KLR)

Hitesh Keshra Vekariya (on behalf of the Estate of the late Harji Lakhaman Vekariya) & 2 others v Apicah Furniture Limited [2022] KEELC 1743 (KLR)

High Court of Kenya
31 January 2022
EWE. K. Wabwoto
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to pause a lower court case on appeal, confirming that stopping proceedings requires exceptional, compelling reasons, not mere inconvenience.

What this practically means

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Executive summary

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This was a ruling by the High Court (E. K. Wabwoto J) on the Appellants' Notice of Motion dated 17th September 2021 seeking a stay of the orders of the Magistrates' Court in Milimani CMCC No. E7272 of 2020, issued on 3rd September 2021 by D.O Mbeja (PM), pending inter partes hearing and pending the hearing and determination of the appeal. The application was supported by the affidavit of Millicent Gatwiri Kinyua and opposed by the Respondent through a Replying Affidavit and Further Affidavit of Monicah Mukule Macharia. The Appellants submitted they had filed the application expeditiously and would suffer substantial loss in unpaid rental income and service charge; the Respondent contended the application was an abuse of process, that rents were being paid, and that no security had been offered. The court framed a single issue: whether the Appellants had satisfied the criteria for grant of stay of proceedings. It emphasised that stay of proceedings is a grave judicial action impinging on access to justice and fair trial, that the test is high and stringent, and drew on Global Tours & Travels, Halsbury's Laws, George Oraro v KTN and Christopher Ndolo Mutuku. Finding no compelling reason or prima facie case, and holding that a stay would delay finalisation of the suit to the Respondent's detriment contrary to Article 159 and Sections 1A and 1B of the Civil Procedure Act, the court dismissed the application with no orders as to costs on 31st January 2022.

Key legal issues

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01

Whether the Appellants satisfied the stringent criteria for stay of proceedings pending appeal

Holding

The application was dismissed: no compelling reason or prima facie case was established and a stay would delay the pending suit contrary to the interest of justice and expeditious disposal.

Reasoning

The court distinguished stay of proceedings from stay of execution, holding the test for stay of proceedings is high and stringent because it interferes with access to justice and fair trial. Applying the Global Tours & Travels factors - expeditious disposal, prima facie arguable appeal, judicial time and expedition - the court found no compelling reason established. The matter was still pending before the magistrates' court and staying it would delay finalisation to the Respondent's detriment, contrary to Article 159 and Sections 1A and 1B of the Civil Procedure Act.

p. 3

Legal principles established

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  • Stay of proceedings is a grave judicial action impinging on the right to a fair trial, and the test for granting it is high and stringent.
  • In deciding whether to stay proceedings the court weighs the need for expeditious disposal, prima facie arguability of the appeal, judicial time and expedition of the application.
  • The power to stay proceedings pending appeal is derived 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 September 2021 (Notice of Motion dated 17th September 2021) seeking stay of proceedings in Milimani CMCC No. E7272 of 2020 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Act, Cap 21Sections 1A and 1B
  • Constitution of KenyaArticle 159(2)(a)(b)(c) and (d)

Cases cited (8)

  • Ezekiel Mule Musembi v H. Young and Company E.A Limited
    [2019] eKLR
  • Chris Munga Bichange v Richard Nyagaka Tongi & 2 Others
    (2013)
  • Chairman Cooperative Tribunal & 8 Others Exparte Management Committee Konza Ranching & Farming Cooperative Society
    (2014) eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • 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 vs. CFC Stanbic Bank Ltd
    (2015) eKLR
  • Halsbury's Laws of England, 4th Edition, Vol. 37, page 330 and 332
On appeal from
Magistrates' Court, Milimani
CMCC No. E7272 of 2020
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

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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, "Hitesh Keshra Vekariya (on behalf of the Estate of the late Harji Lakhaman Vekariya) & 2 others v Apicah Furniture Limited [2022] KEELC 1743 (KLR)", Case Analysis (2022). Not stated on the face of the judgment (Appeal from Milimani CMCC No. E7272 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1743/eng@2022-01-31

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