Dopp Investments Limited v Kenya Railways Corporation & another; Kahia Transporters Ltd & 5 others (Interested Parties) (Environment & Land Case 39 of 2019) [2024] KEELC 3716 (KLR) (23 April 2024) (Ruling)
Neutral citation:
[2024] KEELC 3716 (KLR)
Republic of Kenya
Environment & Land Case 39 of 2019
NA Matheka, J
April 23, 2024
Between
Dopp Investments Limited
Plaintiff
and
Kenya Railways Corporation
1st Defendant
National Land Commission
2nd Defendant
and
Kahia Transporters Ltd
Interested Party
Trade Lead Ltd
Interested Party
Kachungo Edward Bekwekwe
Interested Party
Charles Mulole Shanga
Interested Party
Hamisi Tsuma Mwero
Interested Party
Redalu Mbovo Mgaidi
Interested Party
Ruling
1.The application is dated 22nd January 2024 and is brought under Articles 25 (c), 50, 165 (6) and (7) of the Constitution of Kenya, Section IA, 1B, 3A of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders:1.Spent2.That this Honourable Court be pleased to issue an order staying proceedings in the instant suit pending the inter partes hearing of this Application.3.That this Honourable Court do issue an order staying proceedings in the present suit pending the conclusion of criminal investigations by the Directorate of Criminal Investigations into the circumstances surrounding the Awards dated 11th October 2017 and 31st March 2023 in favour of the 1st respondents/plaintiff herein.4.That the costs of this application be provided for.
2.The application was opposed by a replying affidavit sworn on 28th February 2024 by one Harshil Patel a director of the plaintiff. He avers that the application is brought in bad faith, after inordinate delay, it is a fishing expedition and that it seeks to further delay the dispensation of justice. He also states that there is no provision in law that gives the court powers to stay proceedings pending investigation. The 1st defendant filed grounds of opposition dated 22nd February 2024 stating that the application has been brought after unreasonable delay and it has failed to meet the threshold for granting stay of proceedings. The 3rd respondent through Mr. Makuto, state counsel filed grounds of opposition also dated 22/2/2024 stating that the nature of the prayers are eternal with no limiting period and that the evidence that will emerge after investigations can always be presented to court. Further, Mr Makuto stated that under section 193A of the Criminal Procedure Code, any investigation or criminal proceedings is not a bar to this court’s proceedings.
3.Counsel for the 1st defendant filed their submissions and argued that is no legal provision enabling this court to grant stay of proceedings pending investigation by the EACC and DCI. They relied on several cases such as Watu Credit vs Geoffrey Mokaya Aboki and Karen Chepkurui (2022) where the court held that stay of proceedings interferes with a litigant’s right to be heard without delay. Counsel reiterated that the application was brought under unreasonable delay as the report to the DCI and EACC was made on 4th October 2023 yet the application was filed on 23rd January 2024. Furthermore, counsel also argues that staying the proceedings would have be akin to the court helping the 1st and 2nd interested parties gather evidence which they can rely on which should not happen and they relied on Agneta Masha Msechu vs Naomi Wanjiru Kamau (2018) eKLR. Counsel also alleged that it would cost the taxpayer Kshs. 72 million per annum if the proceedings are stayed.
4.Counsel for the plaintiff submitted that the power to stay proceedings is a discretionary power and ought to be exercised with careful consideration and relied on the Court of Appeal case David Morton Silverstein vs Atsango Chesoni (2002). Counsel introduced a report by the DCI which was done after investigations as to who is the real owner of L.R 1040/2 (IR 21749) and stated that the DCI is functus officio.
5.Having perused and considered the application, the replies and submissions therein, the issue arising is whether or not the court should stay proceedings in the instant suit. It is trite to note that stay of proceedings is an equitable relief which therefore means that it can only be approached through equity. All the parties opposing the application have argued that the application was brought with unreasonable delay. In the affidavit sworn on 22nd January 2024 the annexture marked as OSM 11 shows that the report was made to the DCI and EACC was written on 4th October 2023 yet this application was filed on 22nd January 2024. Annexture OSM 12 shows that the 1st interested party was even invited to write statements sometime in October. Equity aids the vigilant and not the indolent. This application seems like an afterthought, a ruse to delay the proceedings in this Honourable court.
6.I am alive to section 193A of the Criminal Procedure Code that any criminal proceeding which has a subject matter directly and substantially in issue with a civil proceeding shall not stop the proceedings of that civil court. However, there are no criminal proceedings but just investigations. In Maina & 4 others vs Director of Public Prosecutions & 4 others (Constitutional Petition E106 & 160 of 2021 (Consolidated)) (2022) KEHC 15 (KLR) (Constitutional and Human Rights) (27 January 2022) (Judgment) A.C Mrima J. cited with approval Commissioner of Police & the Director of Criminal Investigation Department & another vs Kenya Commercial Bank & 4 others (2013) eKLR where the court of appeal stated as follows;
7.It was also held in Nairobi High Court Constitutional Petition No. E033 of 2021 Maura Muigana vs Stellan Consult Limited & 2 Others (unreported) A.C Mrima J. discussed section 193A of the Criminal Procedure Code and expressed as follows: -
8.I am also sensitive to the allegation that stay of these proceedings would be causing unnecessary costs to the tax payer. Mr. Osman Kahia who swore the afore mentioned supporting affidavit is apprehensive that if the proceedings are not stayed the court would not have the benefit of relying on the findings of the investigations. It is therefore clear that there are no pending criminal proceedings and I find that the possibility of the DCI and EACC conducting prolonged investigations will hamper this court in disposing its mandate under section 1A, 1B & 3A of the civil procedure as well as Article 50 of the Constitution. I find that the findings of the DCI and the EACC can be later used in court or be used by the ODPP in framing charges for criminal proceedings against those found culpable. I find that this application is not merited and I dismiss it. Costs to be in the cause.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 23RD DAY OF APRIL 2024.N.A. MATHEKAJUDGE