Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Eldoret ELC matter)· [2022] KEELC 3995 (KLR)

Chumo & 2 others v Lelei (Environment and Land Case Civil Suit 63 of 2021) [2022] KEELC 3995 (KLR)

Environment and Land Court
28 July 2022
MMM. N. Mwanyale
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kapsabet (M. N. Mwanyale J) on a Notice of Motion dated 1st March 2022 by the Plaintiffs/Applicants seeking a stay of further proceedings in the suit pending the hearing and determination of an appeal in the Court of Appeal at Eldoret against the court's ruling delivered on 25th January 2022. The application was brought under Orders 42 and 43 of the Civil Procedure Rules, supported by the affidavit of Joshua Kipkemei Chumo, on the ground that the appeal would be rendered nugatory if proceedings continued. The Defendant/Respondent, Japhet Kibiwott Lelei, opposed the application as a delay tactic in a suit related to earlier suits pending for over 26 years; the 5th Defendant in the Counter Claim did not oppose it. The court framed the question as whether a stay of proceedings was warranted, holding that such stay is discretionary and guided by Order 42 rule 6(1). It adopted the high and stringent test in Kenya Wildlife Service v James Mutembei and the Global Tours and Travels test requiring the court to weigh the pros and cons, including expeditious disposal, the arguability of the intended appeal, judicial time and the expedition of the application. Weighing these factors, the court found the cons of a stay outweighed its pros: the suit had been pending since 2012, and expeditious disposal under Article 159(2)(b) required the suit and counterclaim to be heard on merit, with any aggrieved party free to appeal to the Court of Appeal thereafter. The application was dismissed with costs to the Defendant/Respondent.

Key legal issues

#
01

Whether the application for stay of proceedings pending appeal met the test for stay

Holding

The application failed; the court declined to stay proceedings because a stay would delay a long-pending suit and the parties can appeal after judgment

Reasoning

The court adopted the Global Tours and Travels test requiring the court to weigh the pros and cons of granting or refusing a stay, considering expeditious disposal, prima facie arguability of the appeal, judicial time and expedition of the application. Applying that test, it found the suit has been pending since 2012 (about nine years), that expeditious disposal under Article 159(2)(b) favours hearing the suit and counterclaim on merit, and that any aggrieved party may appeal to the Court of Appeal thereafter.

p. 3

Legal principles established

#
  • Stay of proceedings is a grave judicial action that interferes with the right of access to justice and fair trial, so the test is high and stringent
  • Whether to grant a stay of proceedings is a matter of judicial discretion; the sole question is whether it is in the interest of justice, weighing the pros and cons including expeditious disposal, arguability of the appeal and expeditiousness of the application

Court orders

#
  1. 1.The application dated 1st March 2022 is dismissed with costs to the Defendant/Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42
  • Civil Procedure RulesOrder 43
  • Civil Procedure RulesOrder 42 rule 6(1)
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (2)

  • Kenya Wildlife Service vs James Mutembei
    (2019) eKLR
  • Global Tours and Travels Limited
    Nairobi H.C. Winding Up Cause No. 43 of 2000
Jurisdiction invoked
Order 42 rule 6(1) and Order 43 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chumo & 2 others v Lelei (Environment and Land Case Civil Suit 63 of 2021) [2022] KEELC 3995 (KLR)", Case Analysis (2022). Not stated in judgment (Eldoret ELC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3995/eng@2022-07-28

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