Mutua v Augustus Mbithi Ndolo (Suing as Legal Representative of the Estate of Erastus Ndolo Mbithi [2022] KEHC 12690 (KLR)

Mutua v Augustus Mbithi Ndolo (Suing as Legal Representative of the Estate of Erastus Ndolo Mbithi (Civil Appeal E142 of 2021) [2022] KEHC 12690 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12690 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E142 of 2021

MW Muigai, J

July 12, 2022

Between

Lawrence Mutuku Mutua

Appellant

and

Augustus Mbithi Ndolo (Suing as Legal Representative of the Estate of Erastus Ndolo Mbithi)

Respondent

Ruling

Notice of Motion Application 1. Vide application date August 19, 2021 brought under order 42 rule 6 of the Civil Procedure Rules, section 1A, 1B, & 3A of the Civil Procedure act and all other enabling provisions of the law and sought the following prayers;-a.(Spent)b.That this court grant an order ex-parte for a temporary stay of further proceedings in Machakos CMCC Suit No 818 of 2019 Augustus Mbithi Ndolo (Suing as the legal representative of the estate of Erastus Ndolo Mbithi (deceased) vs Lawrence Mutuku Mutua including issuing a judgment dated on August 24, 2021 pending the hearing and determination of this application.c.That this court grant an order ex-parte for a temporary stay of further proceedings in Machakos CMCC Suit No 818 of 2019 Augustus Mbithi Ndolo (Suing as the legal representative of the estate of Erastus Ndolo Mbithi (deceased) vs Lawrence Mutuku Mutua including issuing a judgment date on August 24, 2021 pending the hearing and determination of the intended appeal.d.That this court order the production of the virtual hearing conducted on July 27, 2021 in Machakos CMCC Suit No 818 of 2019 Augustus Mbithi Ndolo (Suing as the legal representative of the estate of Erastus Ndolo Mbithi (deceased) vs Lawrence Mutuku Mutuae.That the cost of this application be provided for.

2. The application is supported by the affidavit of Collins Mbanda sworn on August 19, 2021 deposing that on August 3, 2021 when the matter was coming up for hearing, the appellant’s advocate, Mr Mbanda who had the conduct of the matter had sent a colleague to seek an adjournment on medical grounds as he was indisposed and admitted in hospital and the application was declined by the trial court.

Respondent’s Replying Affidavit filed on September 21, 2021 3. The respondent filed a Replying Affidavit dated September 20, 2021 in which he deposed as follows:a.That the stay of the proceedings at this point when the plaintiff case is closed is against the provisions of the Constitution that provides for expeditious disposal of cases.b.That the appellant/applicant made all the attempts to delay this matter by seeking adjournments on the followings dates (i) on August 11, 2020, (ii) on September 15, 2020, (iii) on June 30, 2021, (iv)on July 27, 2021, (v) on August 3, 2021 and on August 24, 2021. c.That in response to paragraph 3 of the affidavit in support (CM2) where Mr Mbanda advocate on record for the appellant allegedly sent a person to hold his brief one Peterson Musili advocate is not an advocate known by Law Society of Kenya and the said Musili should appear in court for examination.d.That the appellant has not made any attempts to review and/or set aside the exparte proceedings and has chosen to stay proceedings in bad faith to delay finalization of this matter.

Appellant’s submissions filed on October 1, 2021 4. The appellant in his submissions based his argument on the following issues for determination;i.On whether the court should allow the application dated August 19, 2021, it was submitted that the application was filed expeditiously as the application was filed under certificate of urgency. Reference was made in the case of Kenya Alliance Co Ltd vs Annabel Muthoki Muteti [2020] eKLR.ii.On the issue whether the appellant/applicant has established a prima facie case reference was made in the case of Ezekiel mule Musembi v Young & Co (EA) limited [2019] eKLR where the court made reference to the holding in Niazons (K) limited vs China Road & Bridge Corporation (K) Ltd Nairobi (Milimani) HCCC No 126 of 1999 – Onyango Otieno, J (as he then was) held that;“Where the appeal may have serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay should be granted.”iii.On the issue where the application has established sufficient cause to the satisfaction of the court that it is the interest of justice to grant the orders sought it is submitted that the appellant here in had been denied a right to be heard in the trial and the matter is enroute to judgment on no fault of his own hence this is denying a litigant a right to be heard; on the circumstances that the Advocate holding brief (one Mr Peterson Musili) is not an advocate known by the Law Society of Kenya reliance was made in the case of Philip Chemwolo & Anor v Augustine Kubende[1984] eKLR where the court held that:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”iv.Also see Misc app No 29 of 2018 Peter |Mwangi Macharia vs Alphaxard Warotho Komu & 2 others [2019] eKLR

Respondent’s submissions filed on October 4,2021 5. The respondent in his submissions stated that on August 3, 2021 (a date taken by consent) when the case was heard and concluded there was no appearance on part of the appellant and nobody was sent to apply for adjournment hence the allegation that the court declined an adjournment in in bad faith.

6. Reference was made in the case of Kenya Power & Lighting Co limited vs Esther Wanjiru Wokabi where the court stated that;“It is clear to me that the said provisions only apply to applications for stay of execution of a decree or order issued by court pending hearing of an appeal but the same do not apply to applications for stay of proceedings such as the application now before me. It is apparent from the face of the application and from the submissions made by the parties that counsel for both parties were operating on the mistaken belief that the conditions prescribed in order 42 rule 6(2) were also applicable to applications for stay of proceedings which is not the case.

7. Also see the case of Global Tours & Travel Limited Nairobi.

8. For the court to stay proceedings a party must show that there is an arguable appeal and if stay is not granted, it will suffer prejudice. The purported intended appeal by the appellant/applicant is not clear of what the appellant/applicant wants. On the issue of the Order made on August 3, 2021 denying adjournment there is no evidence that an adjournment was sought on the said date.

Determination 9. The issue before the court is that this court should issue stay of proceedings order as the court considers the application that the application made before the trial court for adjournment because counsel for the defense was unwell and was refused adjournment be set aside.

10. According to Hon C Githua L J in Kenya Power & Lighting Company Limited vs Esther Wanjiru Wokabi [2014] eKLR :“………the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principle;a)Whether the applicant has established that he/she has a prima facie arguable case;b)Whether the application was filed expeditiously; andc)Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.”

11. See Hon A Ringera J (as he then was) Global Tours &Travels Limited; Nairobi HC Winding Up Cause No 43 of 2000 thus;“….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 cases, 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”.

12. According to the Halsbury’s Law of England, 4th Edition Vol 37 page 330 and 332,:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”

13. This court sought that the Original Court file CMCC 818/2019 to be availed through deputy registrar MHC but the same was not availed and no reasons were advanced. Therefore, this court shall rely on the information from oral submissions and deposed affidavits and written submissions.

14. Mr Mutua for the respondent approached this court that pending the appeal by the appellant on orders granted by the trial court of July 27, 2021 & August 3, 2021 this court ought to issue Witness Summons and/or Warrant of Arrest for the counsel alleged to hold brief for the appellant’s advocate and made the application for adjournment that was denied.

15. Mr Peterson Mukoma Musilli appeared in court on November 8, 2021 in respect of Witness Summons issued by this court on October 5, 2021 and conceded that he was not yet an advocate of the High Court of Kenya. He is a clerk in one of the advocates’ law firms and pursuing diploma in Law at Kenya School of Law. He confirmed that he did not appear in court no 3 and did not address the court. The matter proceeded exparte as the advocate/appellant was not in court.

16. The respondent has informed this court that the said matter has been adjourned severally at the instance of the appellant. The Replying Affidavit of September 21, 2021 at paragraph 7 indicates adjournments on August 11, 2020, September 15, 2020,June 30, 2021, July 27, 2021, August 3, 2021 & August 24, 2021. The respondent informed the court that the plaintiff’s case is closed and the prayer sought of stay of proceedings is overtaken by events.

17. This court in the absence of the original court order(s) subject to the instant/pending appeal cannot exercise judicial discretion in favour of stay of proceedings because;a.There contested facts as to what transpired in the trial court culminating to the impugned orders subject of the appeal.b.The court file and/or orders are not availed to this court therefore the appeal is incomplete and not ready for hearing and determination making the application for stay of proceedings premature.c.It is also in contention whether any application was made before the trial court on behalf of defense counsel for adjournment on medical grounds, or Peterson Mukoma Musilli appeared and not being an advocate a fact he denied or there was no advocate who addressed the court and the matter proceeded exparte.

18. In light of scanty information and absence of court file or impugned order(s) this court cannot establish at this stage an arguable case and/or sufficient cause to grant stay of proceedings.

Disposition1. The application for stay of proceedings is denied at this stage.2. The parties are liberty to seek review of orders before trial court or exercise right of appeal at the conclusion of the matter. No orders as to costs.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12THJULY 2022. (VIRTUAL CONFERENCE)M W MUIGAIJUDGE