Charles Masinde v Samuel Mwaura [2021] KEELC 4273 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KITALE

ELC APPEAL NO. 8 OF 2020

CHARLES MASINDE..................................APPELLANT

VERSUS

SAMUEL MWAURA.................................RESPONDENT

RULING

1. By a notice of motion dated 3/11/2020 and filed on 6/11/2020 brought under Sections 1A, 1Band63of theCivil Procedure Act andOrder 451of theCivil Procedure Rulesthe appellant seeks the following orders:-

…spent.

That this honourable court be pleased to order stay of further proceedings in Kitale Chief Magistrate’s Land Case No. 2 of 2015 pending hearing and determination of this appeal.

…spent.

Costs be provided for.

2. The application is supported by affidavit of the appellant’s counsel sworn on 3/11/2020. The basis of the application is that this appeal is likely to be rendered nugatory; that the appeal raises substantial issues of law and that the appeal and application have been made without delay. Further, it is stated that the appellant shall suffer substantial loss and damage unless the orders sought are granted. An affidavit of service of the application on the respondent was filed on 23/11/2020.

Submissions

3. The court directed that the appeal will be disposed of by way of written submissions. The appellant filed his written submissions on 23/12/2020. The respondent did not file any response or submissions in respect of the application.

Determination

4. The issue that arises in the instant application is whether a stay of further proceedings in Kitale Chief Magistrate’s Land Case No. 2 of 2015ought to be granted.

5. The appeal herein has already been filed. The main issue raised in the appeal is whether the trial magistrate erred in law and in fact in dismissing the application seeking leave to amend the appellant’s defence in the lower court. That is an issue to be determined in the main appeal. What this court requires to determine in the instant application is whether failure to stay the proceedings in the lower court may prejudice the appellant herein.

6. I have read the proposed amended defence and counterclaim that was rejected. It is apparent that the appellant was intent on raising a counterclaim and enjoining two more parties to that counterclaim besides the plaintiff in the original plaint. The merits or demerits of that course of action is to be considered in the main appeal herein and this court must restrain itself from commenting thereon at this stage as that is an issue for this court to determine in  the substantive appeal. In the meantime it is as clear as day that if the proceedings in the subordinate court are allowed to go on before this appeal is determined it may be a great waste of judicial time on the part of the trial court perchance this court finally rules in favour of the appellant herein.

7. For the foregoing reasons I allow the application dated 3/11/2020 in terms of prayer No. (b). In order to expedite this appeal I hereby order that the appellant shall file the record of appeal and serve within45 days in default of which the orders of stay shall stand automatically vacated.

8. This appeal shall be brought up on 23rd March 2021 for further directions.

It is so ordered.

Dated, signedanddeliveredatKitale via electronic mail on this 2ndday of February, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.