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ELCDismissedNot stated in judgment· [2022] KEELC 2681 (KLR)

The Property Development and Management Company PDM (Kenya) Limited v Kasema t/a Millionaire Associates & 2 others (Environment & Land Case 137 of 2015) [2022] KEELC 2681 (KLR)

Environment and Land Court
23 June 2022
3,880 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a land case on appeal grounds, confirming courts won't rehear the same stay request twice.

What this practically means

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Executive summary

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By a Notice of Motion dated 23 March 2022, the Plaintiff/Applicant sought a stay of proceedings of the main suit, including the Defendants' counterclaim, pending the hearing of an intended appeal to the Court of Appeal against the ruling of 10 March 2022, which had declined to set aside the dismissal of the Plaintiff's suit for want of prosecution. The Defendants/Respondents opposed, contending that the application was a delay tactic, an abuse of due process (a similar application dated 26 November 2021 having been dismissed on 10 March 2022), and that the court was functus officio having already pronounced itself on stay of proceedings pending appeal. The court framed two issues: whether it was functus officio, and whether the applicant had met the threshold for stay of proceedings pending appeal. On the first issue, the court, applying the Supreme Court's exposition of the functus officio doctrine in Raila Odinga v IEBC and the Court of Appeal's decision in Telkom Kenya v John Ochanda, held that having previously determined a stay application relating to the same counterclaim, it could not grant a second bite, as that would amount to sitting on appeal over its own decision. On the second issue, applying Kenya Wildlife Service v Mutembei, Global Tours & Travels and Halsbury's Laws, the court found the test for stay high and stringent, requiring exceptional circumstances. Noting the applicant's counsel had participated in the counterclaim hearing and that justice delayed is constitutionally impermissible under Article 159(2)(b), the court held the applicant undeserving of the stay. The application was dismissed with costs to the Defendants/Respondents.

Key legal issues

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01

Whether the court is functus officio in respect of stay of proceedings pending appeal

Holding

The court held it is functus officio, having previously dismissed an application dated 26 November 2021 seeking the same relief of stay of proceedings of the counterclaim pending appeal.

Reasoning

The applicant had earlier sought, in an application dated 26 November 2021, an alternative prayer for stay of proceedings of the counterclaim pending appeal, which was dismissed on 10 March 2022. Although the new application related to an appeal against the 10 March 2022 ruling while the earlier one targeted the 3 November 2021 orders, the common denominator was the same: stay of the counterclaim. Re-adjudicating it would amount to the court sitting on appeal over its own decision, a legal anathema.

p. 6
02

Whether the applicant met the threshold for stay of proceedings pending appeal

Holding

The applicant failed to demonstrate exceptional circumstances; the stay was refused.

Reasoning

Relying on Kenya Wildlife Service v James Mutembei, Global Tours & Travels and Halsbury's Laws, the court reiterated that stay of proceedings is a grave action with a high and stringent test, exercisable sparingly and only in exceptional cases. The applicant, having failed to prosecute her suit and having participated in the counterclaim hearing through counsel (Mr. Ben Murei cross-examined the defendant's witness), would suffer no prejudice if proceedings continued. Courts are enjoined under Article 159(2)(b) to dispose of matters without undue delay.

p. 8

Legal principles established

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  • A court that has already adjudicated on an application for stay of proceedings pending appeal is functus officio and cannot entertain a subsequent application seeking the same or substantially similar relief.
  • Stay of proceedings is a grave judicial action with a high and stringent test, and a party seeking it must demonstrate exceptional circumstances.

Court orders

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  1. 1.The Application dated the 23rd March 2022 be and is hereby dismissed with costs to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 17 Rule 4
  • Constitution of Kenya 2010Article 159(2)(b)
  • Civil Procedure ActSections 1A and 1B

Cases cited (10)

  • Port Florence Community Health Care v Crown Health Care Ltd
    Civil Appeal No. E053 of 2021
  • Niazsons (K) Ltd v Chaina Road & Bridge Corporation (K)
    (2001) eKLR
  • Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)
    [2014] eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Joswa Kenyatta versus Civicon Limited
    [2020] eKLR
  • Wachira Karani versus Bildad Wachira
    [2016] eKLR
  • Cecilia Karuru Ngayu versus Barclays Bank of Kenya & Another
    [2016] eKLR
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
  • Said Sweilem Gheithan Saanum v Commissioner Of Lands (being sued through Attorney General) & 5 others
    [2015] eKLR
Jurisdiction invoked
Inherent jurisdiction over stay of proceedings; Civil Procedure Rules 2010 (Order 17 Rule 4 referenced re dismissal for want of prosecution)

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, "The Property Development and Management Company PDM (Kenya) Limited v Kasema t/a Millionaire Associates & 2 others (Environment & Land Case 137 of 2015) [2022] KEELC 2681 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2681/eng@2022-06-23

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