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ELCDismissedNot stated in the extract (references High Court Criminal Appeal No. 120 of 2011 as related matter)· [2018] KEELC 4850 (KLR)

Kenya Anti Corruption Commission v John F. Kinyua & another [2018] KEELC 4850 (KLR)

High Court of Kenya
19 January 2018
1,595 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed two stay-of-execution applications because the defendants waited over two years, filed no notice of appeal, and showed no real loss.

What this practically means

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Executive summary

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This is a ruling by S. Okong'o J. in the High Court at Nairobi on two similar Notice of Motion applications dated 5th and 6th May 2014 by the 1st and 2nd Defendants, each seeking a stay of execution of the judgment of Okwengu J. delivered on 15th June 2011 striking out their defences and counterclaims and entering judgment for the Plaintiff, pending intended appeals. The background included taxation of the Plaintiff's costs at Kshs.312,319/=, warrants of arrest issued in March 2014 for non-payment, and the Defendants' reliance on a successful appeal in High Court Criminal Appeal No. 120 of 2011 against the underlying Anti-Corruption Court decision. The Plaintiff opposed, contending the suit property had reverted to it and only taxed costs remained recoverable, which it could refund if any appeal succeeded. The court applied the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules. It found the applications filed over two years after judgment, an unreasonable delay that alone disentitled the Defendants. The 1st Defendant had filed no notice of appeal or request for proceedings, and the 2nd Defendant, though he filed a notice of appeal and requested typed proceedings in 2011, had done nothing since and had not filed the appeal seven years later. No substantial loss was demonstrated since only refundable taxed costs were being pursued. Both applications were dismissed with costs to the Plaintiff on 19th January 2018.

Key legal issues

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01

Whether the Defendants satisfied the conditions for stay of execution under Order 42 Rule 6(2)

Holding

They did not; the applications were brought over two years after the judgment, the 1st Defendant filed no notice of appeal, and no substantial loss was shown.

Reasoning

The judgment sought to be stayed was delivered on 15th June 2011 but the stay applications were only filed in May 2014, an unreasonable delay. The 1st Defendant had no notice of appeal on record and the 2nd Defendant, despite requesting proceedings in 2011, never collected them nor filed the appeal seven years later. The only amount being executed is taxed costs which the Plaintiff, a statutory commission, could refund if the appeal succeeds.

p. 2
02

Whether substantial loss would result if stay is refused

Holding

No substantial loss shown; the suit property had reverted to Kenya Re-Insurance Corporation and only taxed costs of Kshs.312,319/= were being pursued, which could be refunded.

Reasoning

The Defendants did not dispute the Plaintiff's position that the suit property reverted to the Plaintiff. Even assuming the property had not transferred, the Plaintiff, being a statutory commission, could account for and pay over any income realized from the property should the intended appeal succeed. Absence of evidence of inability to recover the taxed costs defeats the substantial-loss requirement.

p. 3

Legal principles established

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  • A stay of execution under Order 42 Rule 6(2) requires the application to be made without unreasonable delay and substantial loss to be demonstrated; inordinate delay alone disentitles an applicant.
  • In the absence of a notice of appeal, a party is not entitled to a stay of execution pending an intended appeal.
  • Where the decretal amount is capable of refund, substantial loss is not established.

Court orders

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  1. 1.The 1st Defendant's application dated 6th May, 2014 is dismissed
  2. 2.The 2nd Defendant's application dated 5th May, 2014 is dismissed
  3. 3.Costs of the two applications to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • John Faustian Kinyua and Charles Kinuthia Gichane vs. Republic (High Court Criminal Appeal No. 120 of 2011)
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules

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, "Kenya Anti Corruption Commission v John F. Kinyua & another [2018] KEELC 4850 (KLR)", Case Analysis (2018). Not stated in the extract (references High Court Criminal Appeal No. 120 of 2011 as related matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4850/eng@2018-01-19

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