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Court of AppealStruck OutCivil Appli 264 of 2007

NISHITH YOGENDRA PATEL v PASCALE MIREILLE BAKSH & another [2009] KECA 241 (KLR)

Court of Appeal of Kenya
10 July 2009
ROR.S.C. OmoloPWP.N. WakiDAD.K.S. Aganyanya
1,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a stay application because the same request was already pending in the High Court—you cannot run parallel cases for identical relief.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a notice of motion dated 25th October 2007 brought under rule 5(2)(b) of the Court's rules by Nishith Yogendra Patel, the legal representative of the deceased Yogendra Purshottam Patel, seeking stay of execution of the decree of Githinji J (as he then was, later JA) delivered on 13th March 2006 in H.C.C.C. No. 617 of 1995, pending hearing of Civil Appeal No. 189 of 2007. The underlying dispute concerned ownership of three Nairobi properties, including Kigwa Farm, registered in the names of three brothers as tenants in common; the High Court dismissed the applicant's claim that his brothers were mere Benamidars/trustees and allowed the respondents' counterclaims for accounts and entitlement to one-third shares. The appeal to the Court of Appeal raised 112 grounds. However, at the hearing of the stay motion, counsel for the respondents disclosed that a similar stay application filed in April 2006 remained pending and undetermined before the High Court, where Githinji JA had on 21st June 2006 ordered preservation of the status quo pending its hearing. The applicant's counsel conceded this in submissions and by affidavit. The Court held that pursuing the same remedies in parallel competent courts was a glaring abuse of process which it would not countenance, and struck out the motion without making any pronouncement on its possible merits. Costs of the motion were awarded to the applicant. The decision turned on abuse of process rather than the merits of the stay or the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of motion dated 25th October 2007 seeking stay of execution pending appeal should be granted
  2. 2.Whether the application constituted an abuse of the court process given a parallel, undetermined stay application in the High Court

Key legal issues

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01

Abuse of process by parallel proceedings for the same relief

Holding

The motion was struck out because an identical stay application was pending before the High Court, which the applicant conceded had not been determined

Reasoning

The applicant had filed an application dated 4th April 2006 in the High Court seeking stay of the same decree; the superior court had on 21st June 2006 preserved the status quo pending hearing. Counsel for the applicant conceded the application remained undetermined. Pursuing the identical remedy simultaneously in two competent courts was deprecated as an abuse of process warranting striking out, without pronouncement on the merits.

p. 1

Legal principles established

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  • A party may not pursue the same remedy (stay of execution) in parallel courts concurrently; doing so is an abuse of process justifying striking out the application

Court orders

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  1. 1.The notice of motion dated 25th October, 2007 be and is hereby struck out
  2. 2.The costs of the struck out motion shall be paid by the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
PW
majority
DA
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 617 of 1995
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Relief refused

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Stay of execution of the decree/judgment of the High Court dated 13th March 2006 pending Civil Appeal No. 189 of 2007

The application was an abuse of court process because a similar stay application filed in April 2006 remained pending and undetermined before the High Court; the Court made no pronouncement on merits

p. 3

Costs

The costs of the struck out motion shall be paid by the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is for that reason that we order that the notice of motion dated 25th October, 2007 be and is hereby struck out.
p. 3Final orders - striking out of the application
The costs of the struck out motion shall be paid by the applicant.
p. 3Costs of the motion
There is a glaring abuse of the court process in this matter which this Court will not countenance and consequently, we must strike out the notice of motion before us.
p. 1Abuse of process by parallel remedies

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "NISHITH YOGENDRA PATEL v PASCALE MIREILLE BAKSH & another [2009] KECA 241 (KLR)", Case Analysis (2009). Civil Appli 264 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/241/eng@2009-07-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.