[2016] KEHC 1305 (KLR)
The court held that the plaintiffs' application for stay of taxation proceedings and execution was premature because the bill of costs had not yet been taxed and no order capable of execution had been made. The court emphasized that under Order 42 Rule 9 of the Civil Procedure Rules, a stay of execution can only be...
Source-derived case information.
- Citation
- [2016] KEHC 1305 (KLR)
- Parties
- Plaintiff: SO; Plaintiff: JMO; Defendant: Dr. Nathan Murugu; Defendant: Dr. Lucy Muchiri; Defendant: Dr. Bessie Byakika; Defendant: Dr. Andrew Kanyi; Defendant: The Nairobi Hospital; Defendant: AAR Health Services; Defendant: Medical Practitioners and Dentist Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 468 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Taxation and Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Taxation of Costs, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SO
Plaintiff
JMO
Plaintiff
Dr. Nathan Murugu
Defendant
Dr. Lucy Muchiri
Defendant
Dr. Bessie Byakika
Defendant
Dr. Andrew Kanyi
Defendant
The Nairobi Hospital
Defendant
AAR Health Services
Defendant
Medical Practitioners and Dentist Board
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Taxation and Execution Pending Appeal
Legal Issues
- 1 Whether the plaintiffs are entitled to a stay of taxation proceedings and execution of costs pending the determination of their appeal.
- 2 Whether the application for stay is premature in the absence of a taxed bill of costs or an order in execution of a decree.
Ratio Decidendi
The court held that the plaintiffs' application for stay of taxation proceedings and execution was premature because the bill of costs had not yet been taxed and no order capable of execution had been made. The court emphasized that under Order 42 Rule 9 of the Civil Procedure Rules, a stay of execution can only be granted where there is an order made in execution of a decree. Since only an application for taxation had been filed and no taxation had occurred, there was no executable order. The court found that no prejudice would be occasioned to the plaintiffs by waiting until the bill of costs is taxed, at which point they could apply for a stay if necessary. Accordingly, the application...
Court Disposition
application dismissed
Orders
- The application for stay of taxation proceedings and execution is dismissed.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 468 OF 2010
SO …………………………..........................… 1ST PLAINTIFF
JMO …………………........................................2ND PLAINTIFF
VERSUS
DR. NATHAN MURUGU ………...………1ST DEFENDANT
DR. LUCY MUCHIRI ………............…….2ND DEFENDANT
DR. BESSIE BYAKIKA …….................….3RD DEFENDANT
DR. ANDREW KANYI ……..................... 4TH DEFENDANT
THE NAIROBI HOSPITAL ………....……5TH DEFENDANT
AAR HEALTH SERVICES ……..............6TH DEFENDANT
MEDICAL PRACTITIONERS AND
DENTIST BOARD…..........................… 7 TH DEFENDANT
RULING
The plaintiffs’ case was dismissed with costs to the defendants. Following that order, the 3rd and 5th defendants filed a bill of costs. The plaintiffs have moved the court to stay the taxation proceedings and stay of execution pending the determination of the appeal. The application is based on grounds set out on the face of the application and an affidavit sworn by the 1st plaintiff.
It is opposed and grounds of opposition have been filed on behalf of some of the defendants. The thrust of the application is that, if proceedings are allowed to continue the plaintiffs are likely to suffer irreparable loss as the appeal will be rendered nugatory.
On the other hand the defendants have submitted that the application does not meet the threshold of stay of execution. Counsel have filed written submissions and cited some authorities. I have considered the material before me. The bill of costs is yet to be taxed and therefore no order upon which a decree may be extracted has been made.
The plaintiffs have cited Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act in support of the application. They have already filed an appeal in this matter, this being Civil Appeal No. 252 of 2015 in the Court of Appeal.
The appeal is against the whole decision of this court which includes the dismissal order and costs awarded to the defendants. The plaintiffs have to satisfy the conditions set out under Order 42 Rule 6 aforesaid. I note however that counsel have not referred to Order 42 Rule 9 which has direct reference to Rules 6 and 7 whereby, for those rules to apply there must be an order made in execution of such a decree.
An order of costs is capable of execution only after taxation or determination of reference proceedings from a lower court. In the instant case, only an application has been filed. Taxation is yet to be conducted and it cannot be said that any order has been made in execution of such a decree. I am unable to go out of the provisions of Rule 9 aforesaid and can only observe that the plaintiff’s application is premature.
No prejudice shall be occasioned by waiting until the said bill of costs is taxed because at that point, the plaintiffs will have the opportunity to apply for stay in the event the court of appeal will not have given any other orders. I must therefore find, as I hereby do, that the application lacks merit and is hereby dismissed. There will be no order as to costs.
Dated and delivered at Nairobi this 28th day of July, 2016.
A.MBOGHOLI MSAGHA
JUDGE