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Court of AppealDismissedCivil Application No. 54 of 1999

CHANASE INVESTMENT LIMITED v REGISTERED TRUSTEE OF KENAYA EPISCOPAL CONFERENCE [1999] KECA 92 (KLR)

Court of Appeal
16 September 1999
JGJ. E. GicheruASA. B. ShahEOE. Owuor
170 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a costs order because the company showed no risk it couldn't recover the money if its appeal succeeded.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi dismissing a single-judge application for stay of execution pending an intended appeal. The applicant, Chanase Investment Limited, sought to stay execution of an order for costs arising from a ruling of the High Court of Kenya at Machakos (J.W. Mwera, J) delivered on 25 November 1998 in H.C.C.C. No. 584 of 1994. The court, comprising Gicheru, Shah and Owuor, JJ.A, observed that the only order capable of being stayed was the order for costs, as no other stay could be sought. Applying the established threshold for staying a costs order, the court noted that the applicant had not suggested that costs, once taxed and paid, would be irrecoverable if the intended appeal succeeded. Absent any demonstration of irrecoverability, there was no basis for granting the stay. The application was accordingly dismissed with no order as to costs. The ruling is a concise application of the principle that a costs order will not be stayed merely because an appeal is intended; the applicant must show a real risk that paid costs cannot be recovered on success. The judgment cites no authorities and contains no separate opinions; it is a single ruling of the whole court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a stay of execution of the order for costs should be granted pending an intended appeal

Key legal issues

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01

Whether stay of execution of a costs order pending an intended appeal should issue

Holding

The application was dismissed because the applicant failed to show that costs, if taxed and paid, would not be recoverable if the intended appeal succeeded.

Reasoning

The court identified that the only order capable of being stayed was the order for costs, since no other relief was sought. The threshold consideration for staying a costs order is the risk that the applicant would be unable to recover the costs if the appeal later succeeded. As no such irrecoverability was suggested or demonstrated, there was no basis for interfering, and the application was dismissed without costs.

p. 2

Legal principles established

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  • A stay of execution pending appeal will not be granted in respect of a costs order where the applicant has not demonstrated that costs, if taxed and paid, would be irrecoverable should the intended appeal succeed.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
AS
majority
EO
majority
On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 584 of 1994
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal to grant stay of execution pending an intended appeal (rule-based application; no specific constitutional or statutory provision stated in the judgment)

Relief refused

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Stay of execution of the order for costs pending an intended appeal

The applicant could only seek stay of the costs order, and it was not suggested that taxed and paid costs would be irrecoverable if the intended appeal succeeded

p. 2

Costs

The application is dismissed with no order as to costs (each party to bear their own costs of the application)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances this application is dismissed with no order as to costs.
p. 2Final orders - dismissal of the stay application
It has not been suggested that costs, if taxed and paid, will not be recvoverable, if the intended appeal succeeds.
p. 2Reason for refusing stay of a costs order

Issues in the judgment

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minor

The judgment text contains a typographical error ('recvoverable' for 'recoverable') and the respondent's name appears as 'KENAYA' in the heading, which may be a misprint.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "CHANASE INVESTMENT LIMITED v REGISTERED TRUSTEE OF KENAYA EPISCOPAL CONFERENCE [1999] KECA 92 (KLR)", Case Analysis (1999). Civil Application No. 54 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/92/eng@1999-05-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.