[2005] KEHC 2167 (KLR)
The court found that the application for stay of execution was misconceived because the order of 22nd April, 2005 did not award costs, and the costs in question had already been taxed and charged to the respondent's advocates by an earlier order. Granting a stay would unduly prejudice the advocates, who were not...
Source-derived case information.
- Citation
- [2005] KEHC 2167 (KLR)
- Parties
- Plaintiff: Transnational Bank Ltd; Defendant: Elite Communications Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2655 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Taxation of Costs, Veil of Incorporation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Transnational Bank Ltd
Plaintiff
Elite Communications Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the order for costs pending appeal.
- 2 Whether the application for stay is misconceived given the nature of the orders previously made.
- 3 Whether granting a stay would unduly prejudice third parties not party to the proceedings.
Ratio Decidendi
The court found that the application for stay of execution was misconceived because the order of 22nd April, 2005 did not award costs, and the costs in question had already been taxed and charged to the respondent's advocates by an earlier order. Granting a stay would unduly prejudice the advocates, who were not parties to the proceedings. Furthermore, there was no appeal against the order that awarded the costs, and the applicant's argument that the respondent could not refund the costs if the appeal succeeded was unconvincing, given the amounts involved. The application was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is refused and dismissed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL DIVISION, MILIMANI Civil Case 2655 of 1996
TRANSNATIONAL BANK LTD………………………….PLAINTIFF
VERSUS
ELITE COMMUNICATIONS LTD…………………….DEFENDANT
R U L I N G
It is sought in prayer No. 3 of the notice of motion dated 25th April, 2005 that the Court be pleased to stay the execution of the order for costs herein dated 22nd April, 2005 pending the hearing and determination of the appeal herein. It is apparent from the record of the court that the order of 22nd April, 2005 did not award the costs in question.That order merely dismissed with no order as to costs the respective reference of each party against the taxation of costs granted by an order entered on 5th December, 2003. No costs were granted to any party by the order of 22nd April 2005, and in that respect this present application is misconceived.
However, if the aforesaid prayer no. 3 of the application was meant to be in respect to the order of costs of 5th December 2003, which costs were taxed at Kshs.478,060/85, I note that these costs have already been charged to the Respondent’s advocates, Messrs. Amolo & Company, Advocates vide an order entered in that behalf on 17th May, 2005. That charging order was made under section 52 of the Advocates Act, Cap. 16. Granting the stay sought would therefore unduly prejudice the said Advocates who are not parties to these proceedings. Even the Respondent himself was not a party to the suit, and was brought in by the Plaintiff/Decree-Holder in an effort to lift the veil of incorporation of the Defendant/Judgment-Debtor and make the Respondent personally liable to satisfy the decree herein. It is that application that was dismissed with costs to the Respondent on 5th December, 2003. It is to be noted also that there was no appeal against that order of 5th December, 2003. The appeal in question here is against the order of 22nd April, 2004. It is now pleaded that if the appeal is successful the Respondent will not be able to refund any rebated costs (the appeal being essentially against the quantum of the taxed costs). This submission is unmeritorious. In the application dismissed on 5th December, 2003 the Plaintiff/Decree-Holder sought an order for the Respondent to personally satisfy a decree of over Kshs.27 million. How can it now say that the Respondent would not be able to refund an amount less than half a million?
For the above reasons the application is refused. It is dismissed with costs. Order accordingly.
DATED AND SIGNED AT NAIROBI THIS 27TH DAY OF JULY, 2005.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 29TH DAY OF JULY, 2005.