[2020] KEHC 2375 (KLR)
The court found that the applicant failed to demonstrate or allege that the respondents would be unable to refund the taxed costs should the intended appeal succeed. The reference relating to the taxed costs had already been dismissed. The applicant did not satisfy the requirements under Order 42 Rule 6 of the Civil...
Source-derived case information.
- Citation
- [2020] KEHC 2375 (KLR)
- Parties
- Applicant: Bedrock Holdings Limited; Respondent: Bedrock Security Services Limited; Respondent: Erick Ouma Okeyo; Respondent: Patrick Ochieng Odipo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 134 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution of Taxed Costs Pending Reference and Appeal
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Taxed Costs, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bedrock Holdings Limited
Applicant
Bedrock Security Services Limited
Respondent
Erick Ouma Okeyo
Respondent
Patrick Ochieng Odipo
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution of Taxed Costs Pending Reference and Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution of taxed costs pending reference and appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the application was made without unreasonable delay.
Ratio Decidendi
The court found that the applicant failed to demonstrate or allege that the respondents would be unable to refund the taxed costs should the intended appeal succeed. The reference relating to the taxed costs had already been dismissed. The applicant did not satisfy the requirements under Order 42 Rule 6 of the Civil Procedure Rules, particularly regarding proof of substantial loss and provision of security. Consequently, the application for stay of execution was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The Chamber Summons dated 12.06.2020 is dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CIVIL SUIT NO.134 OF 2009
BEDROCK HOLDINGS LIMITED.........................PLAINTIFF/ APPLICANT
VERSUS
BEDROCK SECURITY SERVICES LIMITED...................1STRESPONDENT
ERICK OUMA OKEYO..........................................................2NDRESPONDENT
PATRICK OCHIENG ODIPO................................................3RDRESPONDENT
RULING
1. The Plaintiff/Applicant’s suit was on 01. 08. 19 dismissed withcosts to the Respondents.
2. By Chamber Summons dated 24. 08. 2020 the Applicant prays for stay of execution of taxed costs pending the hearing and determination of a reference and appeal.
3. Mr. David Otieno, advocate for the Respondents in his replying affidavit sworn on 09. 09. 2020 opposes the application on the ground that no appeal has been filed and that a reference is no bar to execution.
4. I have carefully considered the reference in the light of the affidavits on record.
5. The substantive law of access for the relief sought is Order 42 (6) of the Civil Procedure Rules which provides:
(2) No order for stay of execution shall be made under sub rule
(1) Unless—
a. The court is satisfied that substantial loss may result to the applicant unless the order is made
b. That the application has been made without unreasonable delay; and
c. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
6. Substantial loss, in its various forms is the corner stone of best jurisdictions for granting a stay and the party seeking stay bears aspecific burden regarding proof of substantial loss. (See Rhoda Mukumav John Abuoga[1988] eKLR).
7. The reference relating to the taxed costs was dismissed by an order dated 21. 10. 2020. The Plaintiff/Applicant has not alleged or demonstrated that the Defendants/Respondents would be unable to adequately refund the taxed costs should the intended appeal ultimately succeed.
8. Consequently, the Chamber Summons dated 12. 06. 2020 is without merit and it is dismissed.
DATED AT KISUMU THIS 23rd DAY OF October 2020
T. W. CHERERE
JUDGE
Court Assistants - Ms. Amondi/Ms. Okodoi
For Applicant - Mr. Otieno for Owiti, Otieno & Ragot Advocate
For Respondent - Mr. Mwamu for Mwamu & Co. Advocates