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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court is functus officio in respect of stay of proceedings pending appeal
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.
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.
Whether the applicant met the threshold for stay of proceedings pending appeal
The applicant failed to demonstrate exceptional circumstances; the stay was refused.
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.
Legal principles established
#- 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
#- 1.The Application dated the 23rd March 2022 be and is hereby dismissed with costs to the Defendants/Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.