[2017] KEHC 8562 (KLR)
The court found that the applicant failed to demonstrate any substantial loss or financial hardship that would result from paying the taxed amount. No evidence was provided regarding the applicant's financial resources, nor was there any indication that the respondent would be unable to refund the amount if the...
Source-derived case information.
- Citation
- [2017] KEHC 8562 (KLR)
- Parties
- Applicant: Jackton Ranguma; Respondent: Ernst & Young
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 962 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Objection to Taxation
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Taxation of Costs, Substantial Loss, Advocates Remuneration Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackton Ranguma
Applicant
Ernst & Young
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Objection to Taxation
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss to warrant a stay of execution of the taxed costs.
- 2 Whether the application for stay was filed within the prescribed time under the Advocates Remuneration Order.
- 3 Whether security for due performance has been offered by the applicant.
Ratio Decidendi
The court found that the applicant failed to demonstrate any substantial loss or financial hardship that would result from paying the taxed amount. No evidence was provided regarding the applicant's financial resources, nor was there any indication that the respondent would be unable to refund the amount if the objection succeeded. Furthermore, the applicant had not filed an objection within the time prescribed by the Advocates Remuneration Order, making the application for stay out of time. The court held that the requirements under Order 42 rule 6(2) of the Civil Procedure Rules were not satisfied, and therefore, there was no basis to grant a stay of execution. The application was...
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 962 OF 2006
JACKTON RANGUMA ..........APPLICANT
VERSUS
ERNST & YOUNG..............RESPONDENT
RULING
1. The application dated 16th May, 2016 seeks orders that this Honourable court do issue a stay of execution on the ruling given by the Deputy Registrar on the 5th of May 2016 pending determination of the objection.
2. The application is based on the grounds stated in the application and is supported by the affidavit sworn by the Applicant Jackson Ranguma. It is stated that in a ruling on taxation dated 5th May, 2016, the Plaintiff was ordered to pay Ksh.343,450/= to the Respondent. The Applicant is aggrieved by the said ruling and wishes to object to the same. It is stated that if compelled to pay the taxed amount the Applicant will be subjected to hardship and financial embarrassment. That the Applicant stands to suffer financial loss if stay of execution is not granted.
3. The application is opposed. It is stated in the replying affidavit that there is no evidence to support the claim that the Applicant will suffer substantial loss, hardship or financial embarrassment. That no objection has been filed and therefore the Plaintiff is out of time as provided by paragraph 11(1) of the Advocates Remuneration Order.
4. During the hearing of the application the counsels for the respective parties opted to file written submissions. I have considered the said submissions.
5. Order 42 rule 6 (2) of the Civil Procedure Rules provides as follows:-
“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 and that the application has been made without unreasonable delay; and
b. 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. The Applicant has not given any details on his financial resources to show that he would be exposed to hardship or financial embarrassment. No substantial loss that would be suffered by the Applicant has been demonstrated. As stated by the Court Appeal to in the case of Kenya Shell Limited vs. Kibiru (1986) KLR:
“Substantial loss in its various forms, is the cornerstone of the jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”
7. There are no allegations made by the Applicant that the Respondent would not be in a position to refund the amount in question should the objection succeed. Indeed the objection is yet to be filed. The Applicant is out of time as paragraph 11 of the Advocates (Remuneration) Order provides for the filing of the objection within 14 days.
8. With the foregoing, I find no merits in this application and dismiss the same with costs.
Dated, signed and delivered at Nairobi this 15th day of March, 2017
B.THURANIRA JADEN
JUDGE