RULING
1. By notice of motion application dated 5th July 2024, brought under Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Wilson Kipsang; Elizabeth Chepkiyeng and Jeremiah Kiptugeny, hereinafter jointly referred to as the applicants seek the following orders: -
i) Spent;
ii) Stay of proceedings in Iten MCELC Case No. 11B of 2018 pending the hearing and determination of the appeal against the ruling of Hon. Charles Kutwa SPM, delivered on 19th June 2024;
iii) An order setting aside the proceedings of 19th June, 2024 in Iten MCELC Case No. 11B of 2018;
iv) The proceedings file and record of all rulings in respect of Iten MCELC No. 11B of 2018 be moved to this court to aid in the determination of the appeal;
v) This court be pleased to transfer Iten MCELC to another court within Iten capable of trying the same;
vi) That necessary directions be given.
2. The application is premised on the grounds on its face and supported by the affidavit of Wilson Kipsang, the 1st applicant, sworn on 5th July 2024.
3. From the grounds on the face of the application and the averments in the affidavit sworn in support of the application, the applicants were aggrieved by the decision/ruling of Hon. Charles Kutwa SPM, delivered on 19th June 2024. The applicants have deponed that they have filed an appeal against the ruling of Hon. Charles Kutwa SPM, delivered on 19th June 2024; that the appeal is arguable and with high chances of success; that unless the orders sought are granted, the respondent may execute the order/decree issued in his favour thereby rendering their appeal nugatory.
4. The applicants have further deponed that execution of the order or decree issued in favour of the respondent would occasion them substantial loss; that they are willing to comply with such terms or conditions as the court may impose for grant of the reliefs sought.
5. In reply and opposition to the application, the respondent filed the replying affidavit he swore on 18th July, 2023. The respondent contends that the application is res judicata a similar application the applicants had filed before the lower court which was dismissed hence bad in law, incurably defective; misconceived; devoid of merit and an abuse of the court process; that the application is ambiguous and the orders sought alien and untenable and that the applicants have not demonstrated that they have filed an appeal before this court on which the application can hinge.
6. The respondent further contends that it makes no sense for the applicants to seek an order of transfer of the case to another court yet they claim to have filed an appeal to this court.
7. Parties filed written submissions reiterating the averments contained in their pleadings.
Analysis and determination
8. I have carefully read and considered the application, the response thereto and the submissions by the respective parties.
9. Whilst the applicants moved this court majorly under Order 42 Rule 6 of the Civil Procedure Rules which presupposes that they have filed an appeal before this court, they have not annexed any memorandum of appeal to their supporting affidavit or provided any other evidence capable of demonstrating to this court that they indeed have an appeal filed to this court, on which the application can hinge.
10. In William Odhiambo Ramogi & 3 Others v. Attorney General and 6 Others; Muslim for Human Rights & 2 Others (Interested Parties) (2020)e KLR, the court observed/held:-
“The radical remedy of stay of proceedings cannot be granted merely on the speculation that a properly filed appeal might be in place ‘au futuro’. The court can only consider a prayer to stay its proceedings once it is confirmed that an appeal has been properly filed before the Supreme Court. As things stand, none has been filed.”
11. Although the decision in the case of William Odhiambo Ramogi & 3 Others supra was made in slightly different circumstances from those in the instant application, in that the application for stay of proceedings was made before the trial court as opposed to the court appealed from, the principles that undergird such an application are the same. The law requires that there be in existence an appeal before an application for stay of proceedings pending the hearing and determination of the appeal can issue.
12. In the circumstances of this case/application, where the applicants have not demonstrated existence of an appeal on which the order for stay of proceedings pending the hearing and determination of the appeal can hinge, such order cannot issue for want of substratum.
13. Noting that the applicant has also sought other reliefs like an order setting aside the proceedings of 19th June 2024 and an order for transfer of the lower court case to another court within Iten law courts for hearing and determination on account of what the applicants call denial of a fair hearing, I will now consider whether the applicants have made a case for being granted those orders.
14. Concerning the prayer for an order setting aside the proceedings of 19th June 2024 for alleged denial of fair hearing, no evidence of denial of a fair hearing has been demonstrated or is otherwise deduce able from the proceedings of 19th June 2024. As a matter of fact, no hearing occurred on 19th June 2024. On that day, 19th June 2024, the court merely delivered a ruling in respect of the applicants’ application dated 17th April 2024.
15. Hearing in respect of the applicants’ application dated 17th April, 2024, as can be gleaned from the ruling of the trial court annexed to the applicants’ supporting affidavit, occurred on 3rd April, 2024. It is the proceedings of 3rd April, 2024 which the applicants should have moved the court to set aside and not those of 19th June, 2024. Be that as it may, as pointed out herein above, the applicants have not, through evidence, demonstrated that they were denied a fair hearing to warrant setting aside the proceedings which culminated in the impugned ruling.
16. With regard to the prayer for transfer of the case to another court for hearing and determination, other than the alleged denial of fair hearing, which has not been proved, no other reason/ground has been given and proven to warrant issuance of such an order.
17. The upshot of the foregoing is that the application dated 5th July 2024 is misconceived and lacking in merits. Consequently, I dismiss it with costs to the respondent.
Dated, signed and delivered at Iten this 29th day of October 2022.