[2012] KEHC 3245 (KLR)
The court found that, although the applicant withdrew the suit and was liable for costs, it would be unjust to deny him the opportunity to pursue his appeal. To balance the interests of both parties, the court ordered a stay of execution on the condition that the applicant deposits the assessed costs in court within...
Source-derived case information.
- Citation
- [2012] KEHC 3245 (KLR)
- Parties
- Appellant: Ismail Abdalla Mwimali; Respondent: Regina Omuhala Nasio
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 128 of 2011
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution allowed, conditional on deposit of assessed costs.
- Legal Topics
- Stay of Execution, Withdrawal of Suit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ismail Abdalla Mwimali
Appellant
Regina Omuhala Nasio
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the assessed costs pending appeal.
- 2 Whether the withdrawal of the suit by the applicant was voluntary and binding as to costs.
- 3 Whether the assessed costs are excessive and if the applicant should be protected from execution.
Ratio Decidendi
The court found that, although the applicant withdrew the suit and was liable for costs, it would be unjust to deny him the opportunity to pursue his appeal. To balance the interests of both parties, the court ordered a stay of execution on the condition that the applicant deposits the assessed costs in court within thirty days. This would protect the respondent in the event the appeal fails, while not shutting out the applicant from accessing appellate remedies. The court also noted that the issue of excessive costs could have been settled amicably between the parties.
Court Disposition
Application for stay of execution allowed, conditional on deposit of assessed costs.
Orders
- Stay of execution in Mumias SRMCC 153 of 2003 granted.
- Applicant to deposit KShs.39,600 in court within thirty (30) days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Civil Appeal 128 of 2011
ISMAIL ABDALLA MWIMALI ......................................... APPELLANT
V E R S U S
REGINA OMUHALA NASIO .......................................... RESPONDENT
R U L I N G
On 22/6/2010 the applicant appeared before the Mumias Principal Magistrate, E.K. Makori and decided to withdraw his suit number SRMCC 152 of 2003. He was made to pay costs to the defendant and the costs were later assessed at KShs.39,600/=.
The applicant was represented by counsel before the trial court but decided to withdraw the case on his own. He has now filed this application seeking stay of execution for the costs pending the hearing and determination of his appeal. Mr. Kasamani, counsel for the appellant submitted that counsel for the defendant took advantage of the applicant who is illiterate. The applicant withdrew the suit knowing that he was not going to pay costs and since he had an advocate on record, he could not have entered into such a consent.
Mr. Nandwa, counsel for the respondent’s position is that the applicant withdrew the suit willingly. The withdrawal was made after seven (7) years and costs normally follow the event.
In order not to shut out the applicant from pursuing his appeal, I will order that the assessed costs be deposited in court within thirty (30) days hereof. This will cushion the respondent in the event that the appeal is dismissed. The applicant contends that the taxed costs are excessive. I believe this is a matter where parties could have settled amongst themselves.
In the end I do allow the application dated 18th November 2011 and stay the execution in Mumias SRMCC 153 of 2003. The applicant shall deposit the assessed costs of KShs.39,600/= in court within thirty (30) days hereof failing which the stay of execution to have lapsed.
Delivered, dated and signed at Kakamega this 26th day of March 2012
SAID J. CHITEMBWE
J U D G E