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ELCDismissedEnvironment & Land Case 43 of 2016· [2023] KEELC 21735 (KLR)

Kavoo & 2 others v Lukenya Ranching and Farming Cooperative Society Limited & 3 others

Environment and Land Court
22 November 2023
1,847 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to pause a land case pending appeal, confirming Kenyan courts grant stays of proceedings only in exceptional circumstances.

What this practically means

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Executive summary

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The three applicants in ELC Case No 43 of 2016 moved the Environment and Land Court at Machakos by Notice of Motion dated 17 January 2023 seeking suspension of proceedings in the suit pending determination of their appeal, Civil Appeal No 446 of 2021, in the Court of Appeal against the court's ruling of 25 June 2021 setting aside an ex parte judgment of 16 November 2018 (which had cancelled titles to the suit property) and granting the defendants leave to file a defence and counterclaim. The 1st applicant deposed that the appeal was arguable and that suspension was needed to avoid two conflicting decisions and conserve judicial time. The 2nd respondent opposed, pointing out that the applicants had filed a similar stay application before the Court of Appeal which was not allowed, and that the respondents would be prejudiced by being locked out of a hearing. The court framed a single issue: whether the applicants met the threshold for staying proceedings pending appeal. Relying on Order 42 Rule 6(1) of the Civil Procedure Rules, Article 159 of the Constitution, sections 1A and 1B of the Civil Procedure Act, and authority that stay of proceedings is a grave judicial action with a high and stringent test, the court held that the power to stay proceedings is exercised sparingly and only in exceptional circumstances. The applicants showed no prejudice if the suit proceeded; their only concern was efficient use of judicial time. They also failed to disclose the earlier, unsuccessful stay application before the Court of Appeal. The court noted it was functus officio on the matters raised in the appeal and that the applicants would suffer no prejudice either way. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the threshold for stay of proceedings pending appeal was met

Holding

The threshold was not met; the application was dismissed with costs.

Reasoning

Stay of proceedings is a grave action exercised sparingly in exceptional circumstances. The applicants showed no prejudice if the suit proceeds; their only concern was efficient use of judicial time. They failed to disclose a similar application denied by the Court of Appeal. The court is functus officio on the matters raised in the appeal, and the right to be heard without delay under Article 159(2)(b) favours proceeding with the trial.

p. 4

Legal principles established

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  • The power to stay proceedings is exercised sparingly and only in exceptional circumstances where proceeding would be manifestly against the interests of justice.
  • Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation; the test is high and stringent.

Court orders

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  1. 1.The Notice of Motion dated 17th January 2023 seeking suspension of proceedings is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure Actsections 1A and 1B
  • Constitution of Kenya 2010Article 159; Article 159(2)(b)

Cases cited (5)

  • Re Global Tours & Travel Ltd
    HCWC No 43 of 2000

    Principles governing stay of proceedings pending appeal

  • Niazons (Kenya) Ltd v China Road & Bridge Corporation (Kenya) Ltd
    Milimani HCC No 126 of 1999

    Appeal rendering proceedings in the lower court an exercise in futility

  • Law Society of Kenya v Attorney General & another
    (2019) eKLR

    Appeal's effect on pending proceedings

  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR

    Efficient use of judicial time

  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR

    Stay of proceedings is grave; test is high and stringent

On appeal from
Court of Appeal
Civil Appeal No 446 of 2021
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Kavoo & 2 others v Lukenya Ranching and Farming Cooperative Society Limited & 3 others", Case Analysis (2023). Environment & Land Case 43 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21735/eng@2023-11-22

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