Gitiche v DK (A Minor Suing Through the Next Friend one EMM) & another [2023] KEHC 25286 (KLR)

Gitiche v DK (A Minor Suing Through the Next Friend one EMM) & another (Civil Appeal E27 of 2020) [2023] KEHC 25286 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25286 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E27 of 2020

A Mshila, J

November 10, 2023

Between

Ricky Mburu Gitiche

Appellant

and

DK (A Minor Suing Through the Next Friend one EMM)

1st Respondent

Benjo (K) Limited

2nd Respondent

(Being an appeal from the ruling of Hon V.A Ogutu (RM) in Thika CMCC No. 1235 of 2015 delivered on 5th November, 2020. )

Judgment

1. The appellant being dissatisfied with the judgment/decree dated April 30, 2020 lodged an appeal in Nairobi High Court Civil Appeal No 213 of 2020 on the issue of liability. Subsequently, on July 30, 2020, the appellant filed an application dated July 24, 2020 seeking for an order for stay of proceedings pending hearing and determination of the said appeal.

2. The trial court considered the application and in the end the trial magistrate by a ruling delivered on November 5, 2020 dismissed the application with costs.

3. Being aggrieved by the said ruling of the court, the Appellant has preferred this appeal on the grounds that;-a.The learned Resident Magistrate erred in law and fact in disallowing the Appellant's application dated July 24, 2020 seeking to stay proceedings in Thika CMCC No.1235 of 2015 pending hearing and determination of the appeal in Nairobi High Court Civil Appeal No 213 of 2020 filed against the judgment dated April 30, 2020 in Thika CMCC No 695 of 2015 being the test suit despite the Appellant demonstrating that the preferred appeal would be rendered nugatory.b.The learned Resident Magistrate erred in law and fact by failing to consider the appellant's application dated July 24, 2020 was filed without inordinate delay in the circumstances of the facts prevailing at the material time prior to the filing of the application and in view of the Covid-19pandemic.

4. The appellant sought the court to allow the appeal and set aside the ruling dated November 5, 2020 and reinstate the Appellant's application dated July 24, 2020.

5. The appeal was canvassed by way of written submissions.

Apellant’s Submissions 6. The appellant submits that the trial court erred in dismissing the application for stay despite the appellant having demonstrated that the appeal would be rendered nugatory. Reliance was placed in the case of Ezekiel Mule Musembi v H Young & Company (EA) Limited (2019) eKLR. It was submitted that the right to appeal ought to be safeguarded by preserving the subject matter. The appeal filed was said to be arguable with high chances of success. It was submitted that the High Court in granting an order for stay of execution appreciated that the appeal would be rendered nugatory if stay of execution is not granted and that the determination of the appeal would affect the other pending cases. Reliance was placed in the case of Ricky Mburu Gitiche v Elizabeth Syombua Mwendwa & another (2021) eKLR. Further, the appellant submits that the 1st respondent will not suffer prejudice if the order for stay of proceedings is granted. Lastly, it was submitted that the application for stay was filed without inordinate delay bearing in mind the Covid-19 pandemic. Reliance was placed in the case of Ezekiel Mule Musembi v H Young & Company (EA) Limited (supra).

1St Respondent’s Submissions 7. The 1st respondent submits that the trial magistrate correctly exercised her discretion and that the appellant failed to demonstrate how his appeal would be rendered nugatory. It was submitted that there is a clear distinction between stay of proceedings and stay of execution. Reliance was placed in the case of Christopher Ndolo Mutuku & another v CFC Stanbic Bank Limited (2015) eKLR. It was submitted that the delay of three months was not sufficiently explained. In any case the attempt to explain was made in the submissions which are not considered as evidence. The appellant was said to have placed new material before this court which is improper. It was submitted that the appeal is on liability as such the appeal cannot be rendered nugatory as the test suit will proceed only to assess quantum of damages. Reliance was placed in the case of Fredrick Otieno v Pamela Awino (2013) eKLR. Lastly it was submitted that there is no reason to make the Respondent wait as the proceedings herein will not affect the appeal.

Issues for Determination. 8. Having considered the appeal herein, the main issue arising for determination is whether the appellant has met the threshold for grant of stay of proceedings pending appeal.

Analysis 9. The jurisdiction on whether or not to grant stay of proceedings is discretionary and the same is derived from of order 42 rule 6 (1) of the Civil Procedure Rules.

10. Refer to the case of Re Global Tours & Travel Ltd HCWC No 43 of 2000 where Ringera, J (as he then was) held that:“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”

11. The Appellant in an application for an order for stay of proceedings has to demonstrate that his appeal is arguable and that it has high chances of success. Also that the appeal will be rendered nugatory if stay of proceedings is not granted.

12. Having perused the trial court record, it is clear that the appellant herein is aggrieved by the judgment of the lower court on liability in Thika CMCC No 695 of 2015 being the test suit where liability was apportioned at 70% as against the appellant. The appellant lodged an appeal against the said judgment and in the same breath sought to stay proceedings in Thika CMCC No 1235 of 2015 where his application was dismissed as the learned magistrate found that the appeal would not be rendered nugatory as the appeal is only liability while the lower court would only proceed with assessment of damages. He also found that the application had been filed with unreasonable delay which had not been sufficiently explained as court operations were proceeding online during Covid-19 pandemic.

13. The appellant submits that the appeal will be rendered nugatory if stay is not granted as such there is need to preserve the subject matter. The appeal was said to be arguable with high chances of success. In any case the appellant argued that stay of execution has been granted. The outcome was said to affect other cases in the series. It was stated that the 1st respondent will not suffer prejudice if stay of proceedings is granted.

14. The 1st respondent argued that the exercised its jurisdiction correctly in denying the order for stay and that the appellant has failed to demonstrate how the appeal will be rendered nugatory as the appeal is only on liability as such the court can proceed to assess damages. The 1st respondent argued that there is a distinction between stay of execution and stay of proceedings. The delay of three months was said to be unexplained. It was said that there is no need for the 1st respondent to wait for the appeal.

15. The appellant herein has lodged an appeal against the judgment of the court in the test suit being Thika CMCC No 695 of 2015, the same is only on liability. Whether the appeal is arguable or not that will not be determined by this court. In any case this court is not satisfied that the same has been demonstrated by the Appellant. This court raises issue with the fact that the Appellant seeks to stay proceedings in Thika CMCC No 1235 of 2015. The 1st respondent avers that he will suffer prejudice as the appeal being on liability should not delay and/or interfere with assessment of damages in the other cases.

16. Subsequently, the appellant contends that he was granted stay of execution because the High Court found that his appeal will be rendered nugatory. What the appellant needs to appreciate is that stay of execution and stay of proceedings are granted to serve different purposes.

17. Refer to the case of Kenya Wildlife Service v James Mutembei (2019) eKLR where the court held that: -“…Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent…”

18. In the circumstances, therefore, this court is satisfied that the appellant has not demonstrated how his appeal on liability will be rendered nugatory if the trial court proceeds to assess damages. The 1st respondent should not be made to wait for the outcome of an appeal that does not affect his case.

19. Courts should always endeavour to render justice in a just and expeditious manner as envisioned in article 159 of the Constitution and section 1A of the Civil Procedure Act as such it would not be in the interest of justice for this court to exercise its discretion and grant stay of proceedings as that will mean this court will be delaying the suit in Thika CMCC No 1235 of 2015 that is pending in the lower court to the disadvantage of the 1st respondent.

20. This court is therefore not satisfied that the appellant has demonstrated that he has an arguable appeal to merit the issuance of the orders sought.

Findings and Determinations 21. For the foregoing reasons this court makes the following findings and determinations;i.The interlocutory appeal is found to be devoid of merit and it is hereby dismissed with costs to the respondent;ii.The lower court record be remitted back to Thika Law courts for hearing and determination.

Orders accordingly.

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023A. MSHILAJUDGEIn the presence of;Thuo – for the AppellantNdungu – holding brief for Muhia – for the Respondent