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ELCAllowedNotice of Motion Application dated 11/04/2024 (arising from Business Premises Tribunal Case No. E219 of 2024)· [2024] KEELC 4287 (KLR)

David Wakaimba v Hellen Wahome & 2 Others

High Court of Kenya
23 May 2024
1,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court halted Tribunal proceedings because the same landlord-tenant dispute had already been decided, but the winning party must file an appeal within 60 days or the halt ends.

What this practically means

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Executive summary

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The applicant, David Wakaimba, moved the High Court by Notice of Motion dated 11/04/2024 under Order 42 rules 6 and 51 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, seeking a stay of proceedings in Business Premises Tribunal Case No. E219 of 2024 (Hellen Wahome v David Wakaimba & 2 Others) pending hearing of his application and of an intended appeal. He contended that the Tribunal case was res judicata, a similar dispute having been heard and determined in BPRT Case No. E612 of 2021, and that the Tribunal Chairman had ignored his plea and directed the matter to proceed to hearing on 29/04/2024, rendering the suit an abuse of process. The respondent filed no response despite directions. Mogeni J framed a single issue: whether a stay of proceedings should be granted. The court reviewed the authorities establishing that stay of proceedings is a grave judicial action, interferes with access to justice, and should be granted sparingly and only where the interest of justice demands, weighing expedition, arguability of the appeal, judicial time and promptness. Finding the applicant had moved timeously, that the draft appeal raised bona fide arguable grounds on res judicata and abuse of process, and that no prejudice would befall the unresponsive respondent, the court stayed the Tribunal proceedings pending the appeal, directed filing of the record of appeal within 60 days (in default of which the stay lapses), fixed a mention for 10/06/2024, and ordered costs of the application to abide the appeal.

Key legal issues

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01

Whether stay of proceedings in BPRT Case No. E219 of 2024 pending appeal should be granted

Holding

Stay granted, as the applicant moved timeously to raise res judicata before the Tribunal and no prejudice would be caused to the respondent.

Reasoning

The court applied the stringent test for stay of proceedings from the cited authorities. It found that the applicant had promptly notified the Tribunal Chairman that BPRT Case No. E219 of 2024 was res judicata, having earlier litigated a similar matter in BPRT Case No. E612 of 2021 which was heard and determined, but the Chairman directed the matter to proceed. The applicant sought prudent use of scarce judicial time. Uncontroverted by any response, the court held the matter deserving of stay with no prejudice to the respondent.

p. 4
02

Arguability of the intended appeal

Holding

The draft memorandum of appeal raised arguable grounds, notably that the Tribunal matter was res judicata and an abuse of process.

Reasoning

The court considered the memorandum of appeal dated 8/04/2024, which raised grounds that the Tribunal Chairman erred in failing to hold that the matter was res judicata, in failing to stay the case, and in entertaining an abuse of court process. Relying on Stanley Kinyanjui v Tony Ketter and University of Nairobi v Ricatti, the court noted it is sufficient that a single bona fide arguable ground is raised; an arguable appeal need not necessarily succeed but must not be frivolous.

p. 3

Legal principles established

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  • Stay of proceedings is a grave judicial action that interferes with a litigant's right to conduct litigation and access to justice, and the test for granting it is high and stringent.
  • Whether to grant a stay of proceedings is a matter of judicial discretion exercised in the interest of justice, weighing factors including expeditious disposal, arguability of the intended appeal, judicial time and expedition of the application.

Court orders

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  1. 1.There shall be a stay of proceedings and/or further proceedings in Business Premises Tribunal Case No E219 of 2024 (Hellen Wahome -vs- David Wakaimba & 2 Others) pending the hearing and determination of the appeal.
  2. 2.The matter be mentioned on 10/06/2024 for directions on the disposal of the appeal; the appellant to file the record of Appeal within 60 days from the date hereof and serve, in default of which the stay order ceases to be in force.
  3. 3.The cost of this application shall abide the outcome of the Appeal.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6 and Order 51
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B

Cases cited (5)

  • Kenya Wildlife Service Vs James Mutembei
    (2019) eKLR
  • Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000
  • David Morton Silverstein VS. Atsango Chesoni
    (2002) eKLR
  • Stanley Kinyanjui Vs.Tony Ketter & 5 Others
    (2013) eKLR
  • University of Nairobi Vs. Ricatti Business of East Africa
    (2020) eKLR
On appeal from
Business Premises Tribunal
E219 of 2024
Jurisdiction invoked
Order 42 rule 6 and 51 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act

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, "David Wakaimba v Hellen Wahome & 2 Others", Case Analysis (2024). Notice of Motion Application dated 11/04/2024 (arising from Business Premises Tribunal Case No. E219 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4287/eng@2024-05-23

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