[2023] KEELC 21750 (KLR)
The court found that although there is a pending reference challenging the taxed costs, there is no automatic stay of execution. The applicant failed to prosecute the reference expeditiously, and the decree holder is entitled to enforce the judgment. However, to balance the interests of justice and prevent possible...
Source-derived case information.
- Citation
- [2023] KEELC 21750 (KLR)
- Parties
- Appellant: Justus Ongera Orina; Respondent: Ebisiba Nyaboke & 2 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E014 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Stay of Execution Pending Reference on Taxation
- Outcome
- Conditional stay of execution granted.
- Judges
- JM Kamau
- Legal Topics
- Stay of Execution, Taxation of Costs, Warrant of Arrest, Reference on Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Ongera Orina
Appellant
Ebisiba Nyaboke & 2 others
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Stay of Execution Pending Reference on Taxation
Legal Issues
- 1 Whether the court should grant a stay of execution of the warrant of arrest pending the hearing and determination of the reference on taxation of costs.
- 2 Whether the issuance of the warrant of arrest was premature given the pending reference on taxation.
- 3 Whether the applicant has met the threshold for grant of conditional stay of execution.
Ratio Decidendi
The court found that although there is a pending reference challenging the taxed costs, there is no automatic stay of execution. The applicant failed to prosecute the reference expeditiously, and the decree holder is entitled to enforce the judgment. However, to balance the interests of justice and prevent possible prejudice to the applicant, the court exercised its discretion to grant a conditional stay of execution. The stay is subject to the applicant depositing half of the taxed costs with the court within 30 days, failing which execution may proceed. This approach ensures that the respondent's right to enjoy the fruits of judgment is not unduly delayed, while also safeguarding the...
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution of the warrant of arrest is granted on condition that the applicant deposits half of the taxed costs (Ksh. 137,073) with the court within 30 days from the date of the ruling.
- If the applicant fails to deposit the amount within 30 days, execution may proceed.
Full Case Text
Judgment text and source record
20 paragraphs
Orina v Nyaboke & 2 others (Environment and Land Appeal E014 of 2022) [2023] KEELC 21750 (KLR) (23 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21750 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment and Land Appeal E014 of 2022
JM Kamau, J
November 23, 2023
Between
Justus Ongera Orina
Plaintiff
and
Ebisiba Nyaboke & 2 others
Defendant
Ruling
1. By a Notice of Motion dated 12/10/2023 the Applicant seeks the following orders: -1. That this Honourable court be pleased to certify the instant Application as urgent and the same be heard ex-parte in the first instance.2. That service of this Application be dispensed with in the first instance.3. That the Honourable court be pleased to issue orders of stay of execution of the warrant of arrest issued on the 12th Octgober,2023 pending hearing and determination of this Application.4. That the Honourable court be pleased to issue orders of stay of execution of the warrant of arrest issued on the 12th October, 2023 pending the hearing and determination of the reference dated 6th September,2023 filed herein on 26th September, 2023. 5.That costs of this Application be provided for.
2. The grounds for the said Application as set out in the body of the Application and in the supporting Affidavit of Justus Ongera Orina, the Applicant, are that the Taxation of Bill of costs by the Decree Holder was concluded following the Judgement delivered by this court on 13/6/2023 dismissing the Appeal by the said Justus Ongera Orina. The said Bill was taxed at Ksh. 274,146 and a certificate of costs issued Consequently, there was a warrant of arrest issued against the said Judgment Debtor after the Notice to show cause came up for Hearing in court on 12/11/2023.
3. A Reference was filed against the Bill of Costs which is still pending before this court. He also claims that the warrants of arrest were issued prematurely because there is already pending in court a Reference.
4. In the Replying Affidavit by Ebisiba Nyaboke Jairo on behalf of the Respondents sworn on 23/10/2023 she states that after filing the Application for Reference on 6/9/2023, the Applicant never took a date for the same and that the current Application is an abuse of the court process, frivolous and the same is meant to prevent the 1st Respondent from enjoying the fruits of her Judgment.
5. I allowed the parties to canvass the Application in court and I wish to state that there is no stay of execution and the Decree Holders cannot sit back and wait for the Judgment Debtor to comply with the Decree as and when they wish. An intention to Appeal does not act as stay of execution. The court has to be moved to make orders for stay. However, I will allow a conditional stay of execution that the Judgment Debtor /Applicant deposits half of the taxed costs with the court within the next 30 days from the date of this Ruling.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 23RD DAY OF NOVEMBER, 2023MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: - BrendaMr. Nyandoro holding brief for Mr. Gichana for the AppellantMr. Kimaiyo for the Respondents