[2005] KEHC 2079 (KLR)
The court found that the taxed costs were a very large sum and that, if distributed to the seven original applicants, there was no guarantee of refund in the event the appeal succeeded. The application for stay was brought without unreasonable delay. The omission to cite the correct procedural rule was not fatal....
Source-derived case information.
- Citation
- [2005] KEHC 2079 (KLR)
- Parties
- Respondent: Samuel Muchiri W'Njuguna and 6 Others; Objector: Minister of Agriculture
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 621 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution granted
- Legal Topics
- Stay of Execution, Taxation of Costs, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Muchiri W'Njuguna and 6 Others
Respondent
Minister of Agriculture
Objector
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the certificate of costs should be granted pending appeal.
- 2 Whether omission to cite the correct procedural rule is fatal to the application.
- 3 Whether substantial loss may result if the stay is not granted.
Ratio Decidendi
The court found that the taxed costs were a very large sum and that, if distributed to the seven original applicants, there was no guarantee of refund in the event the appeal succeeded. The application for stay was brought without unreasonable delay. The omission to cite the correct procedural rule was not fatal. The court considered the justice of the matter and determined that sufficient cause existed to grant a stay of execution pending appeal. No order for security was made against the 2nd interested party, and none was required from the 1st interested party due to the likely expeditious appeal process and minimal prejudice to the original applicants from a short delay.
Court Disposition
application for stay of execution granted
Orders
- Stay of execution of the certificate of costs issued herein is granted pending the hearing of the appeal against the decision of the Taxing Master.
- No order for security is made against the 2nd interested party.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Misc Civil Appli 621 of 2000
SAMUEL MUCHIRI W’NJUGUNA AND 6 OTHERS……………RESPONDENT/APPLICANT
VERSUS
MINISTER OF AGRICULTURE………………….................................OBJECTOR/APPLICANT
RULING
There are two applications before me filed by the 1st and 2nd interested parties respectively seeking stay of execution of the certificate of costs issued herein pending the hearing of an appeal against the decision of the Taxing Master on the Bill of Costs taxed. The criteria for granting a stay are contained in O41 r 4 (1) and (2) and are referred to in the case of Vishram Ravji Halal & Anor. Vs Thornton & Turpin Ltd C.A No. 15 of 1990.
The Chamber summons of the 1st interested party did not refer to O41 but under OL r 12 l do not find that this omission is fatal. It is supported by the affidavit of Mr. Raiji in which he refers to the Bill of Costs being taxed in the sum of Kshs 20,161,520. 00 and attacks this award and says his client is dissatisfied and wants to appeal.
The Chamber Summons of the 2nd interested party is supported by the affidavit of Mr. Meso, State Counsel. In paragraph 8 he depones that the amount taxed is colossal and the objector is apprehensive that he may not recover the same in the event of the application being allowed. This refers to an application to execute.
In response the 1st Applicant has sworn an affidavit setting out the value of his property said to be worth more than One Hundred Million. I note that there are no affidavits filed by the other six Applicants.
It is not for me to say whether an appeal against the decision of the taxing matter will succeed or not, however, l am of the view that the taxed costs being a very large sum, this is a matter which l will take into account in considering the justice of the matter. This is sufficient cause to consider granting the application. With regard to substantial loss, if the moneys are distributed to the seven original applicants there is no guarantee that they will be in a position to refund the same.
The Application having been brought without unreasonable delay is granted. Under O 41 r 6 states no order for security can be made against the 2nd interested party. I do not intend to ask for security from the 1st interested party as the appeal procedure is likely to be quick and l do not see that the original Applicants will be prejudiced by a short delay whilst the matter of the appeal is being determined.
DATED and DELIVERED at NAIROBI on 26th January 2005.
P.J RANSLEY
JUDGE