Case ID:170616

Charles Masinde v Samuel Mwaura [2021]eKLR

Case Metadata

Case Number:

Environment and Land Appeal 8 of 2020

Parties:

Charles Masinde v Samuel Mwaura

Date Delivered:

02 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Charles Masinde v Samuel Mwaura [2021]eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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, 1B

and

63

of the

Civil Procedure Act

and

Order 451

of the

Civil Procedure Rules

the 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 2015

ought 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 within

45 days

in default of which the orders of stay shall stand automatically vacated.

8. This appeal shall be brought up on

23

rd

March 2021

for further directions.

It is so ordered.

Dated, signed

and

delivered

at

Kitale via electronic mail

on this

2

nd

day of

February, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.