Taibjee & another v Kanabar & another [2023] KEELC 21346 (KLR)

Taibjee & another v Kanabar & another (Environment & Land Case 154 of 2019) [2023] KEELC 21346 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21346 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 154 of 2019

JO Mboya, J

November 6, 2023

Between

Azim Taibjee

1st Plaintiff

Madhav Bhalla

2nd Plaintiff

and

Harish Kumar Bhagwandas Kanabar

1st Defendant

NCBA Bank Kenya PLC

2nd Defendant

Ruling

1. The instant suit was scheduled for hearing on the 4th July 2023; whereupon the 1st Defendant took out a Preliminary Objection premised and anchored on inter-alia, the provisions of Section 134 and 137 of the Evidence Act and thereafter sought to have the Supplementary Witness statement dated the 19th November 2019; and filed on behalf of the 1st Plaintiff to be struck out and expunged from the record of the court.

2. Arising from the said Preliminary Objection, the Honourable court was called upon and in any event obliged to craft and deliver a Ruling. For good measure, the Honorable court proceeded to and rendered a Ruling on even date, namely, the 4th July 2023, whereupon the court dismissed the Preliminary Objection.

3. Flowing from the Ruling of the court, the 1st Defendant/Applicant (sic) felt aggrieved and thereby proceeded to and file/ Lodge a Notice of Appeal against the named Ruling and thus evidencing his intention to appeal the impugned Ruling.

4. Furthermore, the 1st Defendant/Applicant has since filed and/or mounted an Application and wherein same has sought for various reliefs, inter-alia; [verbatim];i.…………………………………………………………………..Spent.ii.There be a Stay of Proceedings pending the hearing and determination of this Application.iii.There be a Stay of Proceedings pending the hearing and determination of the Intended Appeal against the Ruling delivered by the Court on the 4th July 2023. iv.In any event, costs of (sic) the suit and this Application be awarded to the Plaintiffs/Applicants.

5. The instant Application is premised on various grounds which have been alluded to and enumerated at the foot thereof. Further and in addition, the Application is supported by the affidavit of the 1st Defendant/Applicant sworn on even date.

6. Upon being served with the subject Application, the Plaintiffs/Respondents filed Grounds of opposition dated the 28th October 2023; whereas the 2nd Defendant/Respondent filed Grounds of opposition dated (sic) the 1st November 2022, but which ostensibly should be 1st November 2023.

7. Other than the foregoing, the instant Application came up for hearing on the 2nd November 2023; when the advocates for the respective Parties agreed to canvass and dispose of the Application vide oral submissions. Consequently and in this regard, the Application was duly canvassed and the submissions form part of the record of the court.

PARTIES’ SUBMISSIONS:

APPLICANT’S SUBMISSIONS: 8. The Applicant herein adopted the grounds contained at the foot of the Application and additionally reiterated the contents of the supporting affidavit sworn on the 19th October 2023.

9. Furthermore, Learned counsel for the Applicant thereafter sought to and indeed raised, highlighted and canvassed five (5) pertinent issues for due consideration by the Honourable court.

10. Firstly, Learned counsel for the Applicant has contended that the Applicant herein was aggrieved by the Ruling of the court which was rendered on the 4th July 2023. In this regard, counsel has thus contended that arising from the dissatisfaction, the Applicant herein proceeded to and lodged a Notice of Appeal evidencing his intention to challenge the Ruling before the Honorable Court of Appeal.

11. Additionally, Learned counsel has submitted that the intended Appeal to the Court of Appeal raises arguable points and in this regard, learned counsel has invited the court to take cognizance of the grounds enumerated at paragraph four of the supporting affidavit.

12. Secondly, Learned counsel for the Applicant has submitted that if the scheduled hearing of the suit proceeds and the suit is thereafter heard before the intended appeal is disposed of, this Honorable court will have internalized, relied on and acted upon the impugned evidence; and thus the Applicant herein would stand exposed to undue prejudice and grave injustice.

13. Thirdly, Learned counsel for the Applicant has submitted that if the instant proceedings are not stayed pending the hearing of the intended Appeal, then there is a likelihood of two conflicting decisions arising; in the event that the Court of Appeal arrives at a finding which is contrary to and at variance with the decision of the Environment and Land court.

14. Fourthly, Learned counsel for the Applicant has submitted that the instant Application has been made timeously and in good faith. In this regard, Learned counsel for the Applicant has disputed the allegations that the application reeks of mala fides and is merely intended to defeat the scheduled hearing of the matter.

15. Fifthly, Learned counsel has submitted that though the Ruling relates to and concerns a Preliminary Objection, same was anchored on various Provisions inter-alia, the provisions of Order 19 of the Civil Procedure Rules, 2010; and as a result of such anchorage, no Leave to appeal was necessary and/or required.

16. Put differently, Learned counsel for the Applicant has submitted that the Applicant herein did not require Leave to file the intended appeal and in this regard, Learned counsel for the Applicant has contended that the decision in G.R Mandavia versus Raten Sigh (1965)EA; which relates the position that Leave to Appeal is necessary in a matter where the Preliminary Objection is over-ruled, is neither relevant nor applicable.

17. Furthermore, Learned counsel for the Applicant sought to distinguish the dictum in the case of G.R Mandavia (supra) by invoking and relying on the provisions of Order 43(1) of the Civil Procedure Rules, 2010; which Learned Counsel contended provided a Right of Appeal to the Applicant herein.

18. Premised on the foregoing, Learned counsel for the Applicant has thus implored the Honourable Court to find and hold that the instant Application is meritorious and thus worthy of being granted.

b. Plaintiffs’/ Respondents’ Submissions: 19. The Plaintiffs/Respondents adopted the grounds of opposition dated the 28th October 2023; and thereafter canvassed and amplified five (5) pertinent issues for consideration by the court.

20. First and foremost, Learned counsel for the Plaintiffs has submitted that the Applicant herein has neither espoused nor established the requisite ingredients to warrant the grant of an order of stay of proceedings. In this regard, Learned counsel contended that the Applicant has not deponed to any prejudice or injustice, which is likely to arise and/or occur if the orders sought are not granted.

21. Secondly, Learned counsel for the Plaintiffs/Respondents has submitted that the instant Application has been made and/or mounted with unreasonable and inordinate delay, which delay has neither been accounted for nor explained by the Applicant.

22. In respect of the submissions that the instant Application has been made and/or mounted with unreasonable delay, Learned counsel for the Plaintiffs has invited the court to take cognizance of the fact that the Ruling which is sought to be appeal against was rendered on the 4th July 2023; and yet the current Application was only filed on the 24th October 2023; which constitutes a duration of more than three months.

23. Thirdly, Learned counsel has submitted that though the instant Application is seeking stay of proceedings pending the hearing and determination of the intended Appeal, however, it has been submitted that the intended Appeal, which is alluded to is actually non-existent.

24. Furthermore, Learned counsel for the Plaintiff/Respondents has submitted that the Ruling which is sought to be appealed against relates to a Preliminary Objection which was taken and/or canvassed by the 1st Defendant/Applicant; and which the Preliminary Objection was dismissed.

25. To the extent that the impugned Ruling arose from the Preliminary Objection, which was dismissed, Learned counsel for the Plaintiffs has submitted that the Applicant herein required Leave to appeal, which Leave was neither sought for nor obtained.

26. Other than the foregoing, Learned counsel for the Plaintiffs/Respondents has submitted that the invocation and reliance on the provisions of Order 19 of the Civil Procedure Rules, 2010; by the Applicant herein, is irrelevant and does not suffice.

27. Fourthly, Learned counsel has submitted that the instant Application is yet another calculated and pre-meditated attempt by the 1st Defendant/Applicant to defeat, obstruct and/or delay the hearing and expeditious disposal of the instant suit. In particular, Learned counsel for the Plaintiffs has invited the court to take cognizance of the Applicant’s antecedent conduct, which colors the proceedings right from the inception of the suit.

28. Lastly, Learned counsel for the Plaintiffs/Respondents has invited the court to take cognizance of the provisions of Sections 1A and 1B of the Civil Procedure Act, Chapter 21, Laws of Kenya; as well as the provisions of Article 159 (2)(b) of the Constitution 2010; and thereby find that it is imperative that proceedings be conducted expeditiously and without undue delay.

29. Based on the foregoing, Learned counsel for the Plaintiffs has submitted that the Applicant herein has neither established nor demonstrated the requisite grounds to warrant the exercise of Equitable discretion in her favor or at all.

- C. 2ND Defendant’s/Respondent’s Submission: 30. The 2nd Defendant/Respondent adopted the grounds of opposition (sic) dated the 1st November 2022; (ostensibly, which should be 1st November 2023) ; and thereafter highlighted one salient issue for due consideration by the court.

31. Instructively, Learned counsel for the 2nd Defendant/Respondent contended that the instant Application has been filed with unreasonable and inordinate delay and same is calculated to impede the 2nd Defendant’s/Respondent’s Right of Access to Justice.

32. Other than the foregoing, Learned counsel for the 2nd Defendant/Respondent adopted and reiterated the submissions raised and canvassed by Mr. Taib Ali Taib SC, who appears for the Plaintiffs/Respondents.

Issues for determination: 33. Having reviewed the Application dated the 19th October 2023; albeit filed on the 24th October 2023; as well as the Response thereto and upon consideration of the oral submissions made on behalf of the Parties, the following issues do emerge and are thus worthy of determination;i.Whether the Applicant has established and demonstrated “sufficient cause” or otherwise.ii.Whether the instant Application has been mounted with unreasonable and inordinate delay and if so; whether the delay has been accounted for.iii.Whether the Applicant herein is entitled to the orders of stay of proceedings either as sought or otherwise.

Analysis and determination Issue Number 1Whether the Applicant has established and demonstrated “sufficient cause” or otherwise.

34. The Applicant before the Honourable court seeks for an order of stay of proceedings pending the lodgment and ultimate determination of an intended Appeal to the Court of Appeal.

35. Given the nature of the reliefs sought by and on behalf of the Applicant herein, it is incumbent upon the Applicant to first and foremost demonstrate to the court that same has a sufficient cause and/or basis, to warrant the intervention of the court by granting a favorable order.

36. Put differently, it is the demonstration of a sufficient cause and/or basis that would open the door of the court to enable the Applicant to partake of and/or benefit from the Equitable discretion of the court.

37. Before venturing to discuss whether or not the Applicant herein has established and demonstrated sufficient cause, it is appropriate to discern what then constitutes “sufficient cause”, which an Applicant must establish before partaking of and/ or benefitting from the Equitable discretion of the court.

38. To be able to understand the import and tenor of what constitutes “sufficient cause”, it is worthy to take cognizance in the holding in the case of Wachira Karani versus Bildad Wachira [2016] eKLR, where the court held thus;“I again repeat the question what does the phrase "Sufficient cause" mean. The Supreme Court of India in the case of Parimal vs Veena observed that:-"sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man.In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"

39. From the foregoing decision, several perspectives do arise as pertains to what constitutes “sufficient cause”, which an Applicant like the one beforehand must establish and demonstrate. Firstly, it is evident that sufficient cause denotes due diligence, where an Applicant is called upon to approach the court without unreasonable and/or inordinate delay.

40. Secondly, the other perspective that does arise from the decision (supra) is the fact that an Applicant must not be negligent and/or guilty of inaction, prior to and/or before approaching the seat of Justice for appropriate intervention.

41. Thirdly, what is also discernable from the terminology of sufficient cause is also that the Applicant must demonstrate bona-fides in her endeavor and that where the court is doubtful of the Applicant’s bona-fides, then the court must decline to exercise her Equitable discretion to and in favor of an Applicant who is guilty of mala-fides.

42. Arising from the foregoing considerations, it is now appropriate to venture forward and to interrogate whether the Applicant herein has demonstrated and/or established “sufficient cause”, to warrant the exercise of Equitable discretion in his favor.

43. To my mind, the Applicant herein has neither demonstrated nor established sufficient cause. Instructively, the Applicant herein was privy to and/or knowledgeable of the terms of the Ruling that is sought to be appealed against, but despite being aware of the terms thereof, same did not deem it appropriate to move the court with due dispatch and promptitude, if at all, same was intent on procuring an order of stay of proceedings.

44. Furthermore, it is also not lost on this court that the Applicant herein waited until barely 14 days to the scheduled hearing before filing and/or mounting the instant Application. Clearly, the Applicant knew that by filing the Application within the named timeline, it would not be possible for the Honourable court to entertain and adjudicate upon the said Application prior to and before the scheduled date for hearing.

45. Technically, what is evident and apparent from the conduct of the Applicant herein, is to the effect that the subject application was a calculated albeit pre-meditated move whose net effect was to defeat/ circumvent the scheduled hearing.

46. On the other hand, it is also not lost on the court that the subject matter has previously been scheduled for hearing on various dates including the 11th May 2023 and the 4th November 2023, respectively, on which dates Learned counsel for the 1st Defendant sought for and obtained adjournments albeit on reasons which amounted to ambush and in any event, which with hindsight, appear to have been tailored to delay the hearing.

47. For the avoidance of doubt, I have stated and observed that the adjournments were procured on the basis of reasons that amounted to ambush because Learned counsel raised various issues, for which no prior notice had been disseminated to the advocates for the adverse Parties.

48. Lastly, I also beg to point out that demonstration of “sufficient cause” also connotes that the Applicant has a good case to be canvassed and/or presented before the Appellate court. Consequently and in this respect, it was incumbent upon the Applicant to demonstrate that same has a semblance of an Appeal or intended Appeal to the Court of Appeal.

49. Nevertheless, I must point out that the issue of whether or not there exists an arguable appeal belongs to the Court of Appeal. However, this court cannot turn a blind eye to a critical ingredient that would anchor whether or not the intended appeal constitutes a good/sufficient basis or otherwise.

50. For good measure, it is imperative to recall that the Ruling that is sought to be appealed against emanates from a Preliminary Objection which was dismissed by this court. In this regard, it is worthy to underscore that whenever a Preliminary Objection is dismissed, no appeal lies as of right. Instructively, any Applicant desirous to appeal against an order dismissing a Preliminary Objection is called upon to procure and obtain Leave of the court beforehand.

51. To buttress the foregoing position, it is worthy to take cognizance of the holding in the case of Air Alfaraj Limited versus Raytheon Aircraft Credit Corporation & another [2000] eKLR, where the Court of Appeal held as hereunder;“The other case relied upon by Mr Ahmednasir was that of Kenya Commercial Bank Limited vs Tony Maneseh Esipeya (Civil Appeal No 105 of 1998) (unreported) in which it was held that if a preliminary objection as regards limitation is raised at the trial and that objection is dismissed it amounts to an order appealable with leave and not a preliminary decree appealable as of right. This Court went on further to say that if that point was taken by an application under order 6 rule 13 of the Civil Procedure Rules the order would have been appealablae as of right but as that point was taken by way of a preliminary objection under no particular order under the Civil Procedure Rules, an appeal lay to this Court only with leave of the superior court.”

52. Additionally, it is also appropriate to adopt and reiterate the ratio decidendi in the case of KENYA COMMERCIAL BANK LIMITED versus MANASEH ESIPEYA[1999] eKLR, where the court of appeal stated and held thus;“In the case of G R Mandavia v Rattan Singh [1965] EA 118, the appellant, as defendant in a civil suit, pleaded that the suit was barred as res judicata. This was taken as a preliminary issue and the trial judge ruled that res judicata had not been made out. The appellant, without obtaining leave to appeal, lodged an appeal against this decision and at the hearing a preliminary objection was taken that the decision did not amount to a "decree" or "preliminary decree" within the meaning of section 2 of the Civil Procedure Act (K) , as it did not conclusively determine the rights of the parties with regard to any of the matters in controversy between them; alternatively it was submitted that if the judge's decision was an "order" as defined in that section it was not appealable as of right and, as leave to appeal had not been obtained, the appeal was incompetent. “

53. Whereas it is not my place to make a precipitate and substantive finding on the competence of the Appeal or the intended Appeal, it is imperative that the court takes cognizance of certain salient issues that may impact on the intended appeal and by extension affect the grant of an order of stay of proceedings in the manner sought by the Applicant herein.

54. In a nutshell, I come to the conclusion that the Applicant herein has neither established nor demonstrated the existence of “Sufficient cause” or at all, to warrant the grant of the orders of stay of Proceedings.

Issue Number 2Whether the instant Application has been mounted with unreasonable and inordinate delay and if so; whether the delay has been accounted for.

55. Other than the requirement that an Applicant seeking for stay of proceedings must demonstrate the existence of a “Sufficient cause”, prior to and before partaking of an order of stay of proceedings; it is also important to point out that such an Applicant must also approach the Honourable court timeously and with due promptitude.

56. In respect of the instant matter, it is not lost on this court that the Ruling which is sought to be appealed against was rendered on the 4th July 2023; whereas the instant Application was only filed and/or mounted on the 24th October 2023.

57. Quite clearly, the instant Application was mounted after lapse of a duration of three months and twenty days, which duration has neither been accounted for nor explained, either in the body of the Supporting Affidavit or otherwise.

58. Despite the fact that the Application has been filed and/or mounted after a duration of more than three months, the Applicant herein still had the brevity to contend that the instant Application has (sic) been filed and mounted timeously.

59. To my mind, the duration that has been taken by the Applicant prior to and before mounting the current Application is ex-facie, unreasonable and inordinate, taking into account that the subject matter had set dates for hearing.

60. On the other hand, it is also important to recall that the Application has been filed barely 14 days to the hearing dates, which are currently scheduled for the 7th November 2023 and the 8th November 2023, respectively. Consequently and in this regard, this court is called upon to consider the duration taken by the Applicant herein before mounting the current Application and also to evaluate the reasons, if any, proffered for such a duration of inaction.

61. Unfortunately, no reason(s) have been proffered by the Applicant and thus the delay which has been alluded to in the preceding paragraph, remains unexplained, in any manner whatsoever.

62. In the absence of any scintilla of explanation by and on behalf of the Applicant, this Honourable Court is left with no option, but to infer that the delay in question (which has not been explained), was indeed calculated, deliberate, pre-meditated and otherwise calculated to obstruct and/or defeat the Due process of the court.

63. Furthermore, there being no explanation for the delay, the court is entitled to take a dim view of the Applicant and thereby decline to grant the indulgence sought. In this respect, it is imperative to adopt and reiterate the dictum of the Court of Appeal in the case of Njoroge versus Kimani (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling), where the court held thus;“12. In order to exercise its discretion whether or not to grant condonation, the court must be appraised of all the facts and circumstances relating to the delay. The applicant for condonation must therefore provide a satisfactory explanation for each period of delay. An unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant’s prospects of success. Condonation cannot be had for the mere asking.

An applicant is required to make out a case entitling him to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default. 13. Equally important is that an application for condonation must be filed without delay and/or as soon as an applicant becomes aware of the need to do so. Thus, where the applicant delays filing the application for condonation despite being aware of the need to do so, or despite being put on terms, the court may take a dim view, absent a proper and satisfactory explanation for the further delays.

64. In view of the foregoing, my answer to issue number two above; is to the effect that the instant Application has been mounted with unreasonable and inordinate delay, which has neither been accounted for nor explained by the Applicant herein.

65. In a nutshell, it suffices to point out that the Application is defeated by the Doctrine of Latches.

Issue Number 3Whether the Applicant herein is entitled to the orders of stay of Proceedings either as sought or otherwise.

66. Before venturing to consider whether or not the Applicant herein is entitled to an order of stay of proceedings pending appeal, either in the manner sought or at all; it is imperative to take cognizance of the fact that an order of stay of proceedings is one that operates to suspend the proceedings and/or hold same in abeyance, pending the occurrence of the intended event.

67. Consequently and in the premises, there is no gainsaying that an order of stay of proceedings will ordinarily postpone the hearing and determination of the matter/suit, in respect of which such an order shall have been issued.

68. Owing to the impact and legal consequences attendant to an order of stay of proceedings, it has variously been described as a grave order, which ought to be issued sparingly and with necessary circumspection, insofar as the issuance of same has the consequence of delaying the hearing and determination of the designated proceedings.

69. To be able to understand the import and tenor of the foregoing exposition of the law, it is appropriate to advert to and recall the holding of the Court in the case of Nairobi HC Winding-Up Cause No 43 of 2000 Global Tours & Travel Ltd (UR), where the court held thus;“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 for 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.”

70. Additionally, the necessity to exercise due caution and necessary circumspection before granting an order of stay of proceedings was also re-visited in the case of Kenya Wildlife Services versus James Mutembei (2019)eKLR, where the court stated and held as hereunder;“(6)In the instant case it is my considered opinion that it would not be in the interest of justice to exercise court’s discretion and grant stay of proceedings as it will only serve the purpose of delaying the matter that is pending in the lower court. I am not satisfied that the Applicants have demonstrated that they have an arguable appeal to warrant issuance of the orders being sought.

71. Furthermore, the discussion as pertains to the ingredients to be established and demonstrated prior to and before an order of stay of proceedings can issue, cannot be concluded without the invocation of Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, where the Learned authors opined thus;“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.”“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

72. From the foregoing, what becomes evident and apparent is the fact that an order of stay of proceedings cannot issue at the mere asking by the Applicant, albeit without proof of the requisite ingredients attendant thereto.

73. At any rate, it is also imperative to underscore that prior to issuance of such an order, the Honourable court is called upon to consider whether the issuance of the order of stay of proceedings, like the one sought herein, shall serve the interests of Justice or otherwise. Instructively, one of the tenets of the interests of Justice is the requirement that legal disputes be heard and disposed of expeditiously and without undue delay.

74. Other than the necessity to hear and dispose of legal disputes without undue delay, the other aspect that is worthy of consideration prior to and before the grant of an order of stay of proceedings, is whether the Applicant shall be disposed to suffer undue prejudice or grave injustice, if the orders sought are not granted.

75. Nevertheless, as pertains to the instant matter, the only contention that has been raised by the Applicant is to the effect that the impugned evidence, which is contained at the foot of the witness statement filed by the Plaintiffs herein, shall be relied upon and internalized by the court, prior to and before the hearing of (sic) the intended appeal on behalf of the Applicant.

76. However, what the Applicant herein has neither considered nor evaluated is the fact that the impugned evidence, which formed the basis of the Preliminary Objection, the subject of the ruling rendered on the 4th July 2023; shall still be subject to cross examination by the Applicant, with a view to challenging the probative value thereof or otherwise.

77. To my mind, the Applicant herein shall be seized of the requisite opportunity to interrogate the impugned evidence and to ascertain whether same was procured and obtained in contravention of the provisions of Section 134 and 137 of the Evidence Act, Chapter 80 Laws of Kenya or otherwise.

78. Furthermore, it is worth mentioning that the propriety and/or validity of the impugned evidence, shall still be available to be challenged vide a Substantive Appeal, subject to the final outcome of the suit/proceedings between the Parties. Consequently and in this regard, it suffices to point out that the Applicant herein has neither demonstrated any palpable prejudice or injustice, that is likely to accrue if the orders sought are not granted.

79. Finally, it is also worth pointing out that the appeal by and on behalf of the Applicant herein, may very well proceed, if at all, before the Honorable Court of Appeal and upon the determination thereof, the decision of the Court of Appeal shall supersede any orders and/or directions made by this Honorable court, by dint of the provisions of Article 164 of the Constitution 2010.

80. Consequently and in the circumstances, I do not discern any prejudice that the Applicant herein shall be exposed to suffer if the current proceedings, which have thrice been adjourned at the instance of the Applicant, are allowed to proceed in the usual manner, without any further delay or otherwise.

81. To vindicate the position that the orders and/or directions, if any, by this Honorable court shall abide the decision of the Court of Appeal in due course; it suffices to adopt and reiterate the holding of the Court of Appeal in the case of Dr. David Silverstein vs Atsango Chesoni (2002)eKLR, where the court stated thus;“These remarks aptly apply to the application before us. What will happen if we do not grant the stay sought is that the appeal in the High Court will be heard and may well be determined. But when the appeal already lodged is heard, determined and, if it succeeded, what would automatically follow is that the proceedings in the High Court would have been rendered unnecessary, but an appropriate order for costs can be made to remedy that. However, the appeal in this Court would not have been rendered nugatory.

82. In a nutshell, even if the determination of the instant Application was to be predicated on the third issue herein, I would still have come to the conclusion that the Applicant herein is not entitled to the orders of stay of proceedings, insofar as no prejudice and/or injustice has been demonstrated, to warrant the grant of such an order.

Final Disposition: 83. Having considered the thematic issues, which were highlighted in the body of the Ruling, it must have become apparent that the Application beforehand, has not only been filed with inordinate delay, but is equally devoid of merits, whatsoever.

84. Arising from the foregoing, I come to the conclusion that the Application dated the 19th October 2023, albeit before the court on the 24th October 2023, courts dismissal. In this regard, same be and is hereby dismissed with costs to the Plaintiffs/Respondents and the 2nd Defendant/Respondent, respectively.

85. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS6TH____ DAY OF NOVEMBER 2023. OGUTTU MBOYA,JUDGE.In the Presence of:Benson - Court Assistant.MR. Taib Ali Taib SC for the Plaintiffs/Respondents.Mr. Kyalo Mbobu for the 1stDefendant/Applicant.Mr. Victor Kioko h/b for Mr. Emanuel Mumia for the 2ndDefendant/Respondent.14| Page