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ELCDismissedNot stated in judgment (application dated 4/03/2024 in Milimani Commercial MCELC E293 of 2022 matter)· [2024] KEELC 3887 (KLR)

Cherono v Kahama (Environment & Land Miscellaneous Case E052 of 2024) [2024] KEELC 3887 (KLR)

Environment and Land Court
14 May 2024
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a land case or revive a dismissed joinder application, stressing that delays and missing appeals kill such requests.

What this practically means

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Executive summary

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The Applicant, James Kimutai Cherono, moved the court by a notice of motion dated 4/03/2024 seeking stay of proceedings in Milimani Commercial MCELC E293 of 2022 pending appeal, setting aside or varying the dismissal of his chamber summons application for leave to join a proposed third party (the Land Registrar Nairobi and the Attorney General), and joinder of those third parties. The Respondent, Annette Wanjiru Kahama, opposed the motion, contending that the court lacked jurisdiction to grant the orders sought at that stage, that no appeal was pending, that no memorandum or grounds of appeal had been filed, that the plaintiff's case in the trial court had closed, and that the application was filed out of time. The matter was set for written submissions but none were filed. The court framed two issues: whether stay of proceedings could issue, and whether the grounds for setting aside the dismissal of the joinder application were met. Applying the principle that stay of proceedings is a grave interruption to be granted sparingly and only in exceptional circumstances, the court found no pending appeal and no compelling circumstances. On review, the court held that none of the Order 45 Rule 1 grounds were satisfied: there was no new matter or evidence, no error apparent on the face of the record, and the 407-day delay in bringing the application was unexplained and unreasonable. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Stay of proceedings pending appeal

Holding

Refused - no appeal pending, no evidence of the stage of the trial suit, no compelling circumstances demonstrated

Reasoning

The court applied the Halsbury standard that stay of proceedings is exercised sparingly and only in exceptional cases. Proceedings once filed should continue until determination, consistent with the right to a fair trial under Article 50(2)(e). There was no appeal before the court and the applicant adduced no evidence on the status of the trial suit; the suit was yet to be determined and staying it would not be justified.

p. 3
02

Review/set-aside of dismissal of application for joinder of third parties

Holding

Refused - none of the Order 45 Rule 1 grounds established and the application was brought after 407 days of unexplained delay

Reasoning

Section 80 of the Civil Procedure Act and Order 45 Rule 1 confer discretion to review on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and the application must be made without unreasonable delay. The applicant showed no new evidence, no error apparent on the record, and gave no explanation for the 407-day delay after the order of 1/02/2023, which was dilatory and unreasonable.

p. 4

Legal principles established

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  • Stay of proceedings is a grave interruption of a party's right to litigate and should be imposed only exceptionally, where the proceedings could not possibly succeed
  • Proceedings ought to continue without interruption until determination; stay of proceedings is granted sparingly and only in exceptional circumstances with the threshold of proof beyond reasonable doubt
  • An application for review must satisfy one of the three grounds in Order 45 Rule 1 and must be made without unreasonable delay

Court orders

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  1. 1.The application dated 4/03/2024 dismissed with costs to the Respondent
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Order 51 Rule 1, Order 12 Rule 7, Order 1 Rules 14 and 15, Order 42 Rule 6(1), Order 43 Rule 1(1)(a) 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, "Cherono v Kahama (Environment & Land Miscellaneous Case E052 of 2024) [2024] KEELC 3887 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 4/03/2024 in Milimani Commercial MCELC E293 of 2022 matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3887/eng@2024-05-14

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