1. There are three applications before the court as follows:
a. The application dated 12th July, 2024 filed by the 1st interested party;
b. The application dated 12th July, 2024 filed by the plaintiff; and
c. The application dated 18th July, 2024 filed by the plaintiff.
2. The three applications seek similar prayers which are to set aside the ex parte orders of stay that were issued by this court on 8th July, 2024 and further to rectify the proceedings of 8th July, 2024 at 12:00pm to reflect the absence of the plaintiff and the 1st interested party.
3. The court has read and considered all the pleadings filed by the parties.
4. The main question for determination is whether the stay orders issued on 8th July, 2024 should be set aside.
5. The applicants both contend that the orders for stay were procured fraudulently and without material disclosure to the court. They further argue that on the afternoon when the said orders were issued, they were unable to join the court proceedings and as such the court record should be corrected to capture their absence from the court that afternoon.
6. Quite besides the fraud alleged by the applicants on their counterparts, this court is also disturbed by the material non-disclosure on the 8th July 2024 when the oral application for stay of execution of the ruling was made.
7. Upon perusing the pleadings on record, the court has since become aware of the orders issued by a three [3] Judge Bench [Mutende, Mwita & Thande, JJ]. It is evident that a similar oral application for stay of execution of that ruling was made before that bench. The bench declined to grant the prayer.
8. The orders dated 11th April, 2024 are clear that “the stay of the orders be and is hereby declined”. Had this fact alone been brought to the attention of this court, this court would not have issued the thirty [30] days stay of execution as this is unprocedural in my view.
9. I take the view that a single judge of concurrent jurisdiction cannot sit to review a decision of a three-judge bench. The right procedure would have been to place the application before that same bench and ask it to review its decision or appeal the decision. In any case, once the bench had declined to grant the orders of stay, this court became functus officio. It means that the application for stay of proceedings or stay of execution can only now be canvassed before the Court of Appeal.
10. On these two grounds if not any other, I find that the applications are meritorious and that the prayers ought to be granted.
Disposition:
11. Accordingly, the stay of proceedings orders issued on 8th July, 2024 be and are hereby set aside. The costs of the application shall be in the cause.
a. The application dated 12th July, 2024 filed by the 1st interested party;
b. The application dated 12th July, 2024 filed by the plaintiff; and
c. The application dated 18th July, 2024 filed by the plaintiff.
2. The three applications seek similar prayers which are to set aside the ex parte orders of stay that were issued by this court on 8th July, 2024 and further to rectify the proceedings of 8th July, 2024 at 12:00pm to reflect the absence of the plaintiff and the 1st interested party.
3. The court has read and considered all the pleadings filed by the parties.
4. The main question for determination is whether the stay orders issued on 8th July, 2024 should be set aside.
5. The applicants both contend that the orders for stay were procured fraudulently and without material disclosure to the court. They further argue that on the afternoon when the said orders were issued, they were unable to join the court proceedings and as such the court record should be corrected to capture their absence from the court that afternoon.
6. Quite besides the fraud alleged by the applicants on their counterparts, this court is also disturbed by the material non-disclosure on the 8th July 2024 when the oral application for stay of execution of the ruling was made.
7. Upon perusing the pleadings on record, the court has since become aware of the orders issued by a three [3] Judge Bench [Mutende, Mwita & Thande, JJ]. It is evident that a similar oral application for stay of execution of that ruling was made before that bench. The bench declined to grant the prayer.
8. The orders dated 11th April, 2024 are clear that “the stay of the orders be and is hereby declined”. Had this fact alone been brought to the attention of this court, this court would not have issued the thirty [30] days stay of execution as this is unprocedural in my view.
9. I take the view that a single judge of concurrent jurisdiction cannot sit to review a decision of a three-judge bench. The right procedure would have been to place the application before that same bench and ask it to review its decision or appeal the decision. In any case, once the bench had declined to grant the orders of stay, this court became functus officio. It means that the application for stay of proceedings or stay of execution can only now be canvassed before the Court of Appeal.
10. On these two grounds if not any other, I find that the applications are meritorious and that the prayers ought to be granted.
Disposition:
11. Accordingly, the stay of proceedings orders issued on 8th July, 2024 be and are hereby set aside. The costs of the application shall be in the cause.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 25TH DAY OF JULY 2024.
F. MUGAMBI
JUDGE