[2020] KEELC 2807 (KLR)
The court found that the intended appeal was not frivolous as there was a genuine legal issue regarding the correct value of the subject matter for purposes of assessing instruction fees—whether it should be the amount claimed (Kshs. 4,500,000) or the value of the land (Kshs. 45,000,000). Both positions had merit,...
Source-derived case information.
- Citation
- [2020] KEELC 2807 (KLR)
- Parties
- Applicant: Bethsaida Resort & Spa Ltd; Respondent: Jean-Pierre Gauderlot
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution
- Outcome
- leave to appeal granted; stay of execution granted on terms
- Legal Topics
- Leave to Appeal, Stay of Execution, Assessment of Costs, Instruction Fees, Subject Matter Valuation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bethsaida Resort & Spa Ltd
Applicant
Jean-Pierre Gauderlot
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to appeal the ruling on assessment of costs.
- 2 Whether a stay of execution should be granted pending appeal and on what terms.
- 3 What constitutes the correct value of the subject matter for purposes of instruction fees in costs assessment.
Ratio Decidendi
The court found that the intended appeal was not frivolous as there was a genuine legal issue regarding the correct value of the subject matter for purposes of assessing instruction fees—whether it should be the amount claimed (Kshs. 4,500,000) or the value of the land (Kshs. 45,000,000). Both positions had merit, and the applicant had demonstrated an arguable case for appellate review. Consequently, leave to appeal was granted. On the issue of stay of execution, the court exercised its discretion to protect both parties' interests by ordering that half of the taxed costs be deposited in a joint interest earning account and the other half secured by a professional undertaking from the...
Court Disposition
leave to appeal granted; stay of execution granted on terms
Orders
- Leave to appeal the ruling of 16 December 2019 is granted.
- Stay of execution of the taxed costs is granted on condition that half the amount taxed is deposited in a joint interest earning account in the names of counsel for both parties and the other half is secured by a professional undertaking from applicant's counsel within 60 days; alternatively, the full amount to be...
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
MISC APLC NO. 6 OF 2018
BETHSAIDA RESORT & SPA LTD...........................APPLICANT
VERSUS
JEAN-PIERRE GAUDERLOT.................................RESPONDENT
RULING
(Application for leave to appeal an assessment of costs; leave to appeal granted; stay of execution granted subject to deposit of half the amount taxed and a professional undertaking or alternatively all the money be deposited within 60 days)
1. Through an application dated 18 December 2019, the applicant has sought orders for leave to appeal the ruling of Honourable Justice A. Omollo delivered on 16 December 2019. That ruling was in respect of a reference on a taxation of party and party costs.
2. The background is that the applicant had wished to purchase from the respondent the land parcel Kwale/Diani Complex/246 for a sum of Kshs. 45,000,000/=. A letter of offer was floated and the deposit of 10% being Kshs. 4,500,000/= was made by the applicant. The applicant was to obtain the balance through a loan facility which became complicated and did not materialize. The applicant thus sought a refund of the sum deposited, that is the sum of Kshs. 4,500,000/=. Pursuant thereto, the applicant filed a plaint in the Chief Magistrate’s Court at Kwale, being the case Kwale CMCC No. 507 of 2017 seeking inter alia a refund of the deposited amount of Kshs. 4,500,000/= and a declaration to void the sale agreement between them. A preliminary objection was raised that the subject matter of the suit is Kshs. 45,000,000/= thus beyond the jurisdiction of the Magistrate’s Court. The preliminary objection was upheld and the suit was dismissed on 3 January 2018. The respondent then had costs assessed at Kshs. 1,210,475/=. Aggrieved, the applicant filed a reference to this court and asked this court to reassess the party and party costs arguing that it was wrong to award instruction fees on the sum of Kshs. 45,000,000/=. The court (A. Omollo J), still charged instruction fees on the sum of Kshs 45,000,000/= thus the sum of Kshs. 873,750/= and made some minor adjustments on other items. The applicant now wishes to file an appeal against the said decision and has thus sought leave to appeal and stay of execution pending determination of the appeal.
3. Ms. Nabwana for the applicant contended that value of the subject matter was Kshs. 4,500,000/= and not Kshs. 45,000,000/=. On security she stated that her client was ready to deposit half of the amount taxed in a joint interest earning account, and counsel for the applicant was ready to give a professional undertaking on the balance.
4. Mr. Wafula for the respondent argued that the value of the subject matter was determined at Kshs. 45,000,000/= and no appeal was filed on this finding. He thought that the applicant has not demonstrated that it deserves to be given leave to appeal.
5. I have considered the matter. On whether or not to grant leave, I think that the intended appeal is not frivolous. There is an issue to be tried as to whether the subject matter in the suit was Kshs. 45,000,000/= or Kshs. 4,500,000/=. One could argue that what the applicant claimed in the suit before the Magistrate was only the sum of Kshs. 4,500,000/= and nothing more. There is of course the other argument that what was in issue was land that had value of Kshs. 45,000,000/=. There are valid points in both arguments and I think that the applicant has made out a case that deserves to be heard at the Court of Appeal. I therefore grant leave to appeal.
6. On security, I am prepared to allow one half of the amount taxed to be deposited in a joint interest earning account in the names of counsel for the applicant and respondent, and the other half to be secured by a professional undertaking of counsel for the applicant. This be done within 60 days. If no undertaking will be tendered, then all the money will need to be deposited. If security is not tendered as directed above, then the stay will lapse.
7. On costs, the same shall be in the intended appeal.
8. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 10th day of March, 2020.
______________
MUNYAO SILA
JUDGE.
IN THE PRESENCE OF:
Mr. Ataka for the applicant.
Mr Wafula for the respondent.
Court Assistant; David Koitamet.