[2003] KEHC 35 (KLR)
The court held that the applicant had not demonstrated sufficient cause to warrant a stay of proceedings pending appeal. The mere concern that judicial time might be wasted if the taxation proceeds and the appeal later succeeds does not, in itself, justify the grant of a stay. The court emphasized that it is...
Source-derived case information.
- Citation
- [2003] KEHC 35 (KLR)
- Parties
- Applicant: Onesmus Githinji & Company Advocate; Respondent: Shreyesh Dave
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 666 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Proceedings, Bill of Costs, Appeals, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onesmus Githinji & Company Advocate
Applicant
Shreyesh Dave
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for stay of proceedings pending appeal.
- 2 Whether substantial loss or security for due performance must be shown in an application for stay of proceedings on taxation of a bill of costs.
Ratio Decidendi
The court held that the applicant had not demonstrated sufficient cause to warrant a stay of proceedings pending appeal. The mere concern that judicial time might be wasted if the taxation proceeds and the appeal later succeeds does not, in itself, justify the grant of a stay. The court emphasized that it is inherent in the judicial process for lower courts to conduct proceedings that may subsequently be overturned on appeal, and this does not render such proceedings futile. Accordingly, the application for stay was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Misc Appli 666 of 2001
ONESMUS GITHINJI & COMPANY ADVOCATE………….….......……….APPLICANT
VERSUS
SHREYESH DAVE……………………………………………...………...RESPONDENT
Coram: J. W. Mwera J.
Sarvia for Applicant
Gachuhi for Respondent
RULING
The respondent/applicant filed this application on 26. 3.03 under Order 41 rule 4 Civil Procedure Rules and Section 3A Civil Procedure Act. He seeks orders that the proceedings in this matter be stayed pending the final determination of an appeal he intendeds to file against this court’s ruling of 13. 2.03. That he had not only filed a notice of appeal but he had also applied for the proceedings etc required in filing the appeal. The ruling of 13. 2.03 dismissed the applicant’s application of 15. 2.03 which sought to strike out a bill of costs dated 19. 11. 2001.
Mr. Sarvia told the court that it would be futile and a waste of time if this court did not grant a stay order whereby the bill of costs was taxed only to be thrown overboard in case the intended appeal succeeds. That that appeal was arguable and even with probabilities of success. That a stay order would not prejudice the respondent in this application at all. That sufficient cause was thus shown to stay the proceedings and that for that the aspects of substantial loss and furnishing of security did not arise at all.
Mr. Gachuhi on his part did not agree with the applicant at all and the submissions from both sides are incorporated in the following determination:
The applicant emphasized that he was seeking a stay of proceedings so that the disputed bill of costs is not taxed because the order allowing it to be taxed was the subject of appeal. That in that regard it was not necessary to demonstrate substantial loss or furnishing of security for due performance. It then appears that stress is laid on the basis that judicial time will have been wasted in case the taxation goes on yet if the appeal succeeds all that will go. This is a laudable concern on behalf of the Judiciary by a litigant but this court is not satisfied that it constitutes sufficient cause to stay the proceedings here. Many a time lower courts engage in lengthy, complex and even protracted hearings only to arrive at a decision that is overturned on appeal. Such exercises in most cases are even more taxing than taxing bills of costs. But when thrown overboard it is not said that all was futile. Indeed in some cases, going over the same exercise again may be ordered. But it is the nature of judicial work. What a court ought to do it will do. If a higher court’s decision overturns it so let it be.
In sum this application is dismissed with costs.
Orders accordingly.
Delivered on 10th July 2003.
J. W. MWERA
JUDGE