DAVID MANGELI AND BERNARD MUSYOKA KIVINDU AND 3 Others VS

INTRODUCTION
1  In its Notice of Motion application dated 6/5/2024, the Defendant/Applicant sought an order for stay of proceedings pending hearing and determination of its intended Appeal over the ruling of this court rendered on 12/4/2024 be granted. The other 2 prayers were pending the hearing and determination of the present application and were thus spent. Simon Wall, the Applicant’s General Manager External Affairs swore an Affidavit in support of the application.
2 In opposition to the said application, the 1st Respondent David Mangeli on 28/6/2024 swore a Replying Affidavit on behalf of the Respondents herein. The Respondents further filed grounds of opposition dated 28/5/2024. It is stated that the application for stay is a mere delay tactic and a well calculated move to frustrate the Plaintiffs/Respondents from getting a fair hearing of this matter and which is a breach of their right to expeditious determination of matters. That the Applicant has issued a notice intimating closure of its mining activities in the County [Kwale] by December 2024 and are thus doing all that is possible to evade liability in this matter.  That it will be in the interest of justice for the application to be dismissed.
3 The Applicant filed a supplementary affidavit in response to the averments raised in the replying affidavit and the grounds of opposition. It is averred that the Applicant is a holder of several prospecting mineral licenses in other parts of the country including Kwale. These are listed at paragraph 11 of the affidavit. Additionally, that the Applicants Likoni export facility located inside Mombasa port will continue to be owned and operated by the Applicant. The Applicant states that it is currently the largest mining entity in Kenya and from its audited accounts it is able to pay its debts. That the grounds and Memorandum of Appeal demonstrate the applicant has an arguable appeal that needs to be settled by the Court of Appeal. The court is urged to grant the orders sought in the appeal.
BRIEF HISTORY
4 It is necessary to paint a bit of the backdrop that led to the application. The Plaintiffs herein filed this suit seeking compensation for damages as a result of the Defendants mining activities. The Defendant filed a preliminary objection disputing this court’s jurisdiction to determine the suit. In its ruling delivered on 12/4/2024 this court dismissed the preliminary objection and held that it had the jurisdiction to determine the suit. The said ruling has been appealed against and the Defendant/Applicant now seeks for stay of the proceedings before this court pending hearing of the appeal.
SUBMISSIONS
5 The Applicants written Submissions were dated 26/7/2024 while those of the Respondent are dated 14/9/2024. Parties were also given an opportunity to highlight orally their submissions on 23/09/2024.  The court has considered the submissions by both the parties.
ANALYSIS
6 Having considered the application the responses thereto and the submissions of the parties, the main issue that commends determination is whether the Applicant has met the threshold for grant of stay these proceedings pending appeal.
7 The power to stay proceedings is donated by the provisions of order 42 of the Civil Procedure Rules. Order 42, rule 6. (1) which provides;-
‘No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.’
8 The court therefore has to rely on the settled principles on when proceedings may be stayed pending appeal.  The question of whether or not to grant an order for stay of proceedings is a discretionary one. This discretionary power must be exercised judiciously. The court has to consider if it will be in the interests of justice to grant the same. Ringera J, (as he then was) in Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000 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 In the case of David Morton Silverstein vs. Atsango Chesoni [2002] eKLR, the Court of Appeal citing Kenya Commercial Bank Ltd vs. Benjoh Amalgamated Ltd & Another [1998] eKLR held that it is not the law that a stay of proceedings cannot be granted but that each case depends on its own facts.
10 I have seen the robust submissions by Counsel for the Applicant on the arguability of the appeal. But I must state that at this juncture the orders of stay of proceedings are being sought from the court that rendered the ruling. It would therefore be misplaced to consider whether or not the appeal is arguable. This would be the preserve of the Court of appeal were the application to be made before that court. But as long as the matter is before this court then I cannot purport to comment on my own decision. However the court should also be concerned with the question of whether or not the appeal will be rendered nugatory.
11 Guided by the law and above judicial decisions this court will therefore apply itself to whether the reasons or grounds advanced by the applicant in support of the application are sufficient, whether it would be in the interest of justice to grant such orders which will necessitate weighing the pros and cons of granting or denying the same. The circumstances of the case and its history would also be considered in this regard vis a vis the overriding objectives of the Civil Procedure Act and Environment and Land Court Act.
12 The Applicants urge that there are two conflicting decisions of the same court on whether the Environment & Land Act has original or only appellate jurisdiction to determine disputes regarding compensation under the Mining Act creating confusion. That this court cannot exercise both jurisdictions simultaneously. The first decision is Peter Nzeki & 14 Others Vs. Base Titanium Limited & 4 Others (2021) where Justice C. Yano held that the ELC only has appellate jurisdiction. The other decision is the ruling the subject of the intended appeal where I held that I can exercise original jurisdiction to hear and determine disputes under the Mining Act. For me this is a ground of appeal against the decision of this court and not a reason for staying the proceedings herein. This in my view would not be a sufficient reason for staying proceedings.
13 Would the Appeal be rendered nugatory should the court decline to grant an order staying these proceedings?  I think this is where the crux of the matter lies. I have perused the draft Memorandum of Appeal and the same is on the failure of the Applicants to exhaust the laid down dispute resolution mechanisms by the Mining Act before invoking the jurisdiction of this court. The applicants maintain that this court is bereft of the jurisdiction to determine the instant suit.  It is clear that in the event the court does not grant an order for stay of proceedings and the Appeal herein is heard and was successful, the proceedings in this court would have been rendered unnecessary and a clear waste of Judicial time which must not be wasted in proceedings that would end up being academic exercise. See Muchanga Investments Ltd Vs Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR,
14 But what about the interests of justice and the overriding objectives of the Civil Procedure Act. The Respondents Plaintiffs state that the Defendant Applicant have already issued Notice of end of Operations in Kenya by December 2024. A Public Notice by the Ministry of Mining Blue Economy and Maritime Affairs State Department for Mining has been annexed (DM1). That the application is a ploy to frustrate the Plaintiffs and to delay the hearing of these proceedings. That once the Defendants shut down and leaves jurisdiction it will be impossible to recover the amount decreed should the court find in favor of the Plaintiffs. That even if the application herein is rejected the Applicants can still pursue its Appeal without any negative impact.
15 In response to the above the Applicants state that they hold several prospecting or mineral licences where PL/2015/0042 has one further renewal permissible under the Mining Act 2016, while other prospecting or mineral exploration licences are pending processing. The particulars are disclosed. It is also deponed in the Supplementary affidavit that the rehabilitation works for the sites are anticipated to take up to three years after the mining operations cease. A letter dated 28th June 2024 issued by NEMA is attached. I think for me the Plaintiffs fears as to the folding of the Defendants operations have been well addressed by the Defendants. In any event closure of the mines does not mean the dissolution of the Defendant. The Plaintiffs rights to access to justice in my view are not threatened.
16 The upshot of the foregoing is that the Notice of Motion dated 6/5/2024 is hereby allowed. Costs of the application will be in the cause.
Orders accordingly.
Ruling dated signed and delivered this 13th day of November 2024

Ms. Onesmus for the Defendant/Applicant
Mr. Tindika for the Plaintiffs/Respondent
Asmaa Muftah Court Assistant