[2015] KEHC 7822 (KLR)
The court found that there were no current proceedings before it capable of being stayed, as the only ongoing process was taxation, over which the court has no jurisdiction except by way of reference. The Taxing Master is at liberty to proceed with taxation and issue a Certificate of Taxation. Any stay can only be...
Source-derived case information.
- Citation
- [2015] KEHC 7822 (KLR)
- Parties
- Plaintiff: Paul Gachanga Ndarua; Defendant: Kenya Posts & Telecommunications Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 631 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Stay of Proceedings, Taxation of Costs, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Gachanga Ndarua
Plaintiff
Kenya Posts & Telecommunications Corporation
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether there are any further proceedings to be stayed in this matter.
- 2 Whether the court has jurisdiction to stay the taxation process pending appeal.
Ratio Decidendi
The court found that there were no current proceedings before it capable of being stayed, as the only ongoing process was taxation, over which the court has no jurisdiction except by way of reference. The Taxing Master is at liberty to proceed with taxation and issue a Certificate of Taxation. Any stay can only be sought if and when execution proceedings arise after the Certificate of Taxation is issued. The application for stay was therefore dismissed as premature and without basis.
Court Disposition
application dismissed
Orders
- The Notice of Motion application dated 26th February 2015 is dismissed with costs in the cause.
- The Taxing Master is at liberty to issue Certificate of Taxation herein.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 631 OF 2012 (Formerly HCCC No. 2863 of 1996)
PAUL GACHANGA NDARUA ::::::::::::::::::::::::::::: PLAINTIFF/APPLICANT
VERSUS
KENYA POSTS & TELECOMMUNICATIONS
CORPORATION ::::::::::::::::::::::::::::::::::::::::: DEFENDANT/RESPONDENT
R U L I N G
1. Before the court is a Notice of Motion dated 26th February 2011 filed by the Defendant seeking as the main order the issuance of an order for stay of proceedings pending hearing and determination of an appeal.
2. The application is premised on the grounds stated therein that the Applicant intends to lodge an appeal against the judgment of this court given on 20th June 2014 and has to that effect filed a Notice of Appeal dated 1st July 2014 and has also request for proceedings. In the meantime the Respondent is likely to tax its bill of costs which would be difficult to recover if the appeal succeeds. The application is also supported by the affidavit of the Plaintiff sworn on 26th February 2015.
3. The Respondent opposed the application through Grounds of Opposition filed in court on 29th April 2015. In its opposition to the application the Respondent states that the application has been brought after a lapse of 8 months, an inordinate delay which has not been explained. Further the Respondent states that the Plaintiff has not shown that there is sufficient cause to stay the taxation of the Defendant’s costs and that the Applicant has not shown what prejudice he is likely to suffer if the order of stay is not granted.
4. Parties filed submissions to the application which I have considered. There is only one issue for determination, and that is, whether there are any further proceedings to be stayed in this matter. It is to be noted that the proceedings which were taking place at the time this application was filed in February 2015 were those of taxation. This court, in a Ruling made on 9th June 2015 directed that the said taxation shall proceed but that a certificate of taxation shall not issue until this Ruling is delivered.
5. Since this court has no jurisdiction to interfere with a taxation process except in the matter of a reference, where an aggrieved party comes to this court to challenge the finding of a Taxing Officer, it is my finding that indeed there are no current proceedings to be stayed. This means that the Taxing Master has the liberty to proceed with the taxation process and to issue a Certificate of Taxation. It is the events which may proceed after the Certificate of Taxation is issued that may create proceedings capable of being stayed. We cannot speculate about those events. It may as well be that when a Certificate of Taxation is issued, after the amount due to the Defendant is ascertained, the Plaintiff may as well pay the costs. What I am saying is that the Plaintiff can only seek to stay execution proceedings, if there are any. Until such a situation arises, there are no proceedings before this court capable of being stayed.
6. In the upshot the Notice of Motion application dated 26th February 2015 is dismissed with costs in the cause.
7. The Taxing Master is at liberty issue Certificate of Taxation herein.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI
THIS 2ND DAY OF OCTOBER 2015
E. K. O. OGOLA
JUDGE
PRESENT:
M/s Mwendi holding brief for Kethi for the Plaintiff
M/s Alluvale holding brief for Murugara for the Defendants
Teresia – Court Clerk