NOCODEMUS KIBASO V CHAIRMAN OF THE BOARD OF GOVERNERS MATONGO LUTHERAN THEOLOGICAL COLLEGE [2012] KEHC 1389 (KLR)

REPUBLIC OF KENYA

High Court at Eldoret

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NOCODEMUS KIBASO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

CHAIRMAN OF THE BOARD OF GOVERNERS

MATONGO LUTHERAN THEOLOGICAL COLLEGE::::DEFENDANT

RULING

This Motion on Notice brought under sections 1, 1(A) 3, 3A and 63 of the Civil Procedure Act, Order XLI Rule 4 and Order L Rule 1 of the Civil Procedure Rules, seeks primarily a stay of proceedings herein pending the hearing and determination of Eldoret Court of Appeal Civil Appeal No. 166 of 2011. the application is by the defendant. The principal reasons for the application are that his appeal has overwhelming chances of success and that the same will be rendered nugatory unless the stay is granted.

The application is supported by an affidavit sworn by one Edward Kochung who describes himself as the defendant. The affidavit reiterates the above grounds.   The application is opposed and there is a replying affidavit sworn by the plaintiff.   The plaintiff's main objections are that the defended is guilty of inordinate delay; that the defendant's appeal was lodged out of time without leave and that in any event the appeal will not be rendered nugatory.

When the application came up before me for hearing on 23rd May, 2012, counsel agreed to file written submissions which were duly filed by 4th July, 2012.   Those submissions elaborated the stand-points taken by the parties in their respective affidavits.

I have considered the application, the affidavits filed and the submissions of counsel. Having done so, I take the following view of the matter. For the applicant to succeed he had to satisfy the conditions set in order 42 Rule 6 of the Civil Procedure Rules. Although the said pre-requisites relate to stay of execution, in my view, they provide a guide when stay of proceedings is being considered. Being of that view, the applicant in addition to showing sufficient cause, had also to satisfy the court that the application had been made without unreasonable delay and that he would suffer substantial loss unless stay of proceedings is granted.

The defendant has moved the court for stay of proceedings 2 years and 3 months after the ruling of 18th November, 2009. In my view, that delay is inordinate. The defendant did not have to await the filing of the record of appeal in order to lodge this application.   The defendant contends that his appeal may be rendered nugatory if proceedings are not stayed and he eventually succeeds in his appeal.   The defendant is appealing against an order overruling his preliminary objection that this suit is res judicata; that the plaintiff's claim is statute barred and that the plaint was verified by an incompetent affidavit.   If this application is denied, the suit will proceed to hearing and if the plaintiff's claim is allowed, the defendant will have the liberty to appeal against the judgment and also seek stay of execution.   If the application is allowed and the appeal eventually succeeds, that will be the end of the matter, save for costs.

Further if the application is declined and the suit is heard and determined in favour of the plaintiff and the appeal eventually succeeds, the judgment can easily be set aside subject to costs.

In this premises, I find, and hold that the defendant's appeal if successful would not be rendered nugatory unless there is a stay of proceedings in this suit. I am not statisfied that any other substantial loss will result to the applicant unless these proceedings are stayed.   No sufficient cause has therefore been shown.

In the end the application dated 28th February, 2012 and filed on the same date is without merit and is hereby dismissed with costs.

Orders accordingly.

DATED AND DELIVERED AT ELDORET

THIS 5TH DAY OF SEPTEMBER, 2012

F. AZANGALALA

JUDGE

Read in the presence of:-

Mr. Omusundi H/B for Mr. Onyinkwa for the plaintiff and

Mr. Namiti H/B for Ochid for the defendant.

F. AZANGALALA

JUDGE

5TH SEPTEMBER, 2012