Richard Toroitich v Mike K. Lelme, Elisheba C. Lelmet, Pauline J. Lelmet & Esther J. Lelmet Sued as Administrators of William Cheruiyot Lelmet (Environment & Land Case 17 of 2014) [2014] KEELC 208 (KLR)
The bottom line
#A Kenyan court refused to pause a striking-out order because the plaintiff showed no real loss — a bare dismissal with untaxed costs leaves nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Threshold conditions for stay of execution under Order 42 Rule 6(2)
The applicant failed to demonstrate substantial loss; the only possible execution is for untaxed costs, so there is nothing to stay.
The court restated the three conditions in Order 42 Rule 6(2). While the delay of just over one month was found not unreasonable, the applicant could not show substantial loss because the suit was struck out with costs only; costs were untaxed and no execution had begun. Relying on Western College of Arts and Applied Science v Orange, a bare dismissal leaves nothing capable of being stayed.
Whether anticipated results of an unprosecuted counter-claim can found a stay
Stay cannot be granted in anticipation of orders that may arise from a counter-claim not yet prosecuted.
The applicant's apprehension that the respondents would prosecute their counter-claim and evict him was held to be speculative. The court held that stay of results of a counter-claim that has not been heard cannot be given in anticipation of future orders; such fears are matters for a later stage, not for a stay application under Order 42 Rule 6.
Legal principles established
#- Three conditions must be met before stay can be granted under Order 42 Rule 6(2): application without unreasonable delay, demonstration of substantial loss, and furnishing of security.
- Where a suit is merely dismissed or struck out with costs, there is no positive order capable of being stayed; only taxed costs may be subject of execution.
- Security for costs is only considered once substantial loss has been established.
Court orders
#- 1.The applicant's application dated 4th July, 2014 is dismissed with costs to the respondents.
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Toroitich v Mike K. Lelme, Elisheba C. Lelmet, Pauline J. Lelmet & Esther J. Lelmet Sued as Administrators of William Cheruiyot Lelmet (Environment & Land Case 17 of 2014) [2014] KEELC 208 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/208/eng@2014-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.