2. The applicant submitted that it has an arguable appeal, and that it is not in dispute that the respondent is a foreign company. Counsel stated that the respondent has no assets within the jurisdiction.
3. Further, on the issue of timelines in making the application, counsel submitted that that the ruling of the lower court was issued on 14th August, 2023 and that the present application is dated 5th October, 2023. He submitted that a stay of proceedings would be in the interest of justice, and that the same had not been made without delay.
4. In opposition to the same, counsel for the respondent submitted that the decision of the lower court in relation to security of costs was based on the premise that the applicant bears the burden of proving that the respondent would be unable to satisfy costs at the conclusion of the suit. This was not done.
5. He further submitted that at this point it would be premature to determine the issue of costs with the suit still pending.
6. I note that the relevant law is as follows:
7. In the case of Kenya Wildlife Service Vs James Mutembei (2019) eKLR, Gikonyo J held that:
“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”.
8. Further, in the persuasive authority in Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000 Ringera J, (as he then was) stated 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 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”.
9. Based on the above, I am persuaded that is a discretionary power exercisable by the court upon consideration of the facts and circumstances of each case.
10. Mindful not to delve into the merits of the appeal, the burden of proving that that the respondent has no assets in the jurisdiction lies on the appellant. However, this court ought not to determine that issue conclusively at an interlocutory stage, as the same is presently pending appeal. I am therefore persuaded that the present application is premature as an appeal is pending on that particular issue.
11. Further, weighing the competing factors, such as the right to have access to justice, and to timely justice, and efficient use of judicial resources, I am not persuaded that the facts of the present matter satisfy the test for a stay of proceedings as set out above.
12. Having considered reasons provided by counsel and the law as set out above in relation to the above application, I am satisfied that the same is without merit.
13. The Notice of Motion Application dated 5.10.23 is accordingly dismissed with costs.