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ELCDismissedNot stated in the judgment· [2014] KEELC 208 (KLR)

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)

High Court of Kenya at Kitale
25 September 2014
1,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the High Court at Kitale (E. Obaga, J) on a notice of motion dated 4th July 2014 seeking stay of execution of orders made on 28th May 2014, by which the court had upheld a preliminary objection that the plaintiff's suit was time barred, struck out the suit and the accompanying injunction application, and awarded costs to the defendants. The applicant intended to appeal and contended that failing a stay would render the appeal nugatory, annexing a draft memorandum of appeal. The respondents opposed, arguing the applicant had not met the Order 42 Rule 6 threshold. The court identified three conditions: application without unreasonable delay, demonstration of substantial loss, and security. The delay of just over one month was found not unreasonable. However, no substantial loss was demonstrated: the suit had merely been struck out with costs which had not been taxed, no execution had begun, and no positive order had been made against the applicant, so there was ideally nothing to be stayed. The court applied and followed the East African Court of Appeal decision in Western College of Arts and Applied Science v Orange, which holds that after a bare dismissal with costs there is nothing arising from the judgment for a stay to enforce. The applicant's fears regarding the respondents' unprosecuted counter-claim and possible eviction were held to be premature and incapable of grounding a stay. Security was not considered since substantial loss had not been established. The application was dismissed with costs to the respondents.

Key legal issues

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01

Threshold conditions for stay of execution under Order 42 Rule 6(2)

Holding

The applicant failed to demonstrate substantial loss; the only possible execution is for untaxed costs, so there is nothing to stay.

Reasoning

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.

p. 2
02

Whether anticipated results of an unprosecuted counter-claim can found a stay

Holding

Stay cannot be granted in anticipation of orders that may arise from a counter-claim not yet prosecuted.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The applicant's application dated 4th July, 2014 is dismissed with costs to the respondents.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (2)

  • Peter Anyang' Nyongo & 2 others –Vs- Minister for Finance & another
    [2007] eKLR
  • Western College of Arts and Applied Science -Vs- Orange
    [1976] KLR 63
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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, "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.