[2005] KEHC 1507 (KLR)
The court held that the established procedure in cases where costs are awarded and an appeal is pending is to allow the party awarded costs to enforce the order, provided their advocate gives an undertaking to refund the costs if the appeal succeeds. The court found no sufficient reason to depart from this practice,...
Source-derived case information.
- Citation
- [2005] KEHC 1507 (KLR)
- Parties
- Applicant: Housing Finance Company of Kenya Ltd; Respondent: Embakasi Youth Development Project
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1068 of 2001
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- PJ Ransley
- Legal Topics
- Stay of Execution, Costs Pending Appeal, Legal Persona, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Housing Finance Company of Kenya Ltd
Applicant
Embakasi Youth Development Project
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution in respect of costs should be granted pending appeal.
- 2 Whether costs can be awarded to a party lacking legal persona.
- 3 Whether an undertaking by the respondent's advocate to refund costs if the appeal succeeds is sufficient.
Ratio Decidendi
The court held that the established procedure in cases where costs are awarded and an appeal is pending is to allow the party awarded costs to enforce the order, provided their advocate gives an undertaking to refund the costs if the appeal succeeds. The court found no sufficient reason to depart from this practice, especially in light of the authorities cited. The applicant's argument that the respondent lacked legal persona and thus should not be awarded costs was not persuasive at this stage, as the advocate's undertaking to refund the costs adequately protected the applicant's interests. Consequently, the application for stay was dismissed, but the court ordered that the costs be paid...
Court Disposition
application dismissed with costs
Orders
- Application for stay pending appeal is dismissed with costs.
- Costs to be paid to the respondent's advocate on his undertaking to refund the same if the appeal succeeds and it is so ordered.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICivil Case 1068 of 2001HOUSING FINANCE COMPANY OF KENYA LTD……………………………………..……..PLAINTIFF/APPLICANTVERSUSEMBAKASI YOUTH DEVELOPMENT PROJECT ………………………………DEFENDANT/RESPONDENTRULING
The Applicant applies for a stay pending appeal to the Court of Appeal from the order of Mr. Justice Ojwang in which he refused a reference from a decision of the Taxing Officer, who had rejected a submission by the Applicant herein, that as the Respondent in this Application had no legal persona, no costs could be awarded to it. His reason for rejecting the reference are contained in his Judgment of the 12. 11. 2004.
Mr. Ahmednasir for the Applicant submitted that the Applicant had a good cause against the said Judgment and that the matter was a proper one for argument in the Court of Appeal. In the result the amount of costs should be put into an interest bearing account in the names of the parties’ advocates
Mr. Omuga opposed the application and submitted that a stay in respect of costs should not be granted.
He relied onMorgan & Elford C.A. 1876 CD Vol. IV page 352in which it was held:-
“A party to whom costs have been ordered to be paid will not be restrained from enforcing the order pending an appeal to the House of Lords, if his solicitors undertakes to refund if the order should be reversed”
Also Kabaa versus Wambui & Another Court of Appeal No.298 of 1996 where the Learned Court of Appeal states:
“Furthermore we do not think a stay can be granted in respect of costs”
In this case the advocate for the Respondent is prepared to give an undertaking to refund the costs if the Appeal succeeds and it is so ordered.
In my view this is the proper procedure in dealing with costs.
I therefore decline to grant this Application which is dismissed with costs but order that the costs are paid to the Respondents’ advocate on his undertaking to refund the same if the appeal succeed and it is so ordered.
Dated and delivered at Nairobi this 11th day of July,2005
P.J. RANSLEYJUDGE