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ELCDismissedKajiado ELC No. 397 of 2017· [2024] KEELC 4959 (KLR)

Sidian Bank Ltd v Olitunya & 4 others (Environment & Land Case 397 of 2017) [2024] KEELC 4959 (KLR)

Environment and Land Court
20 June 2024
1,579 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 in Kajiado refused to pause a land case, ruling that a mere planned appeal does not justify stopping proceedings.

What this practically means

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Executive summary

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The 2nd to 4th Defendants in Kajiado ELC No. 397 of 2017 (Sidian Bank Ltd v Alice Olwalo Olitunya & 4 others) moved the court by Notice of Motion dated 9th January 2024 seeking a stay of proceedings pending an intended appeal to the Court of Appeal against a ruling of 9th November 2023 in which the court dismissed their preliminary objection and affirmed its jurisdiction over the suit. The Plaintiff, through her Legal Officer Jackline Ndung'u, opposed the application, arguing it was designed to delay a substantially-heard suit, that the Defendants would retain a right of appeal after judgment, and that the Defendants should have sought the stay at the Court of Appeal. The application was canvassed by written submissions. Applying the six conditions from the three-judge High Court decision in William Odhiambo Ramogi and the Court of Appeal's decision in Nairobi City Council v Tom Ojienda & Associates, L. Komingoi J held that the power to stay proceedings is discretionary and must be exercised sparingly in exceptional circumstances. The court found no appeal was pending at the Court of Appeal — only a notice of appeal and a draft memorandum — and that the Defendants failed to show the appeal would be rendered nugatory, since a judgment without jurisdiction could be revisited on appeal and the Court of Appeal could itself stay proceedings. The application was dismissed with costs to the Plaintiff on 20th June 2024.

Key legal issues

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01

Stay of proceedings pending intended appeal

Holding

The application fails because no appeal was pending at the Court of Appeal, only a notice and draft memorandum, and the applicant did not demonstrate the appeal would be rendered nugatory

Reasoning

The court adopted the six conditions in William Odhiambo Ramogi for stay of proceedings. The Defendants had only filed a notice of appeal and draft memorandum; there was no evidence of filing at the Court of Appeal under Rule 77. If the suit proceeds and is determined, the Defendants retain a right of appeal, and any judgment rendered without jurisdiction could be set aside. The Court of Appeal itself can stay proceedings once an appeal is filed. Staying the substantially-heard suit would prejudice the plaintiff and delay justice contrary to section 1A of the Civil Procedure Act.

p. 4
02

Whether application was filed expeditiously

Holding

The application was brought after inordinate delay — ruling on 9th November 2023, notice of appeal on 23rd November 2023, application filed 15th January 2024 — contrary to the expeditious-filing condition

Reasoning

The plaintiff argued, and the court accepted in its analysis, that the six-condition test requires the application to be filed expeditiously and without delay. The lapse of roughly two months between the ruling and the application, without explanation, weighed against granting the discretionary remedy.

p. 3

Legal principles established

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  • The power to grant a stay of proceedings is discretionary and should be exercised sparingly and only in exceptional circumstances to prevent injustice
  • Where stay of proceedings is sought in the trial court rather than the appellate court, the applicant should explain why the stay was not sought in the higher court

Court orders

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  1. 1.The Notice of Motion dated 9th January 2024 seeking stay of proceedings is dismissed
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rules 1 and 2
  • Civil Procedure ActSections 1A, 1B and 63(e)
  • Court of Appeal RulesRule 77

Cases cited (7)

  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi
    [2014] eKLR
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    (2017) eKLR
  • Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • William Odhiambo Ramogi & 3 others vs Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
  • Mocha Hotel Ltd vs Kwanza Esrares Ltd
    [2023] KEELC 21729 (KLR)
  • Nairobi City Council v Tom Ojienda & Associates
    [2022] KECA 1326 (KLR)
Jurisdiction invoked
Order 51 rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B and 63(e) 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, "Sidian Bank Ltd v Olitunya & 4 others (Environment & Land Case 397 of 2017) [2024] KEELC 4959 (KLR)", Case Analysis (2024). Kajiado ELC No. 397 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4959/eng@2024-06-20

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