Robert Muli Matolo v Attorney General & 2 others [2019] KEELC 3066 (KLR)
The bottom line
#The High Court refused to halt execution because the applicant waited ten months, and you cannot stay an order that only awards costs.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution of a negative order
A negative order (striking out a suit) is incapable of execution save for costs and cannot be stayed
The court relied on Raymond M. Omboga vs. Austine Pyan Maranga, holding that the Ruling of Mbogo J striking out the suit with costs was a negative order. The only executable element was the assessed costs, so the stay prayer could only relate to costs, and the applicant had not sought it within a reasonable time.
Inordinate delay in seeking stay
Filing the stay application ten months after the Ruling constituted inordinate delay warranting dismissal
The Ruling was delivered on 29th November, 2017 and the application was filed on 26th September, 2018. Having known that the Defendants would tax their costs, the Plaintiff should have sought a stay within a reasonable time. The ten-month delay was inordinate and disentitled the applicant to the discretionary relief.
Setting aside the Certificate of Taxation
No good reason was shown to set aside the Certificate of Taxation as the former advocate was duly served
The evidence showed the Plaintiff's former advocate was served with the Bill of Costs and Taxation Notice on 13th July, 2018 and did not dispute service. Submission on behalf of the client that he was unaware of the taxation could not stand where the advocate on record was duly served. The court declined to order a rehearing de novo.
Legal principles established
#- A negative order incapable of execution cannot be stayed save for costs
- An application for stay of execution must be brought within a reasonable time; inordinate delay justifies refusal
Court orders
#- 1.Dismissal of the Application dated 26th September, 2018
- 2.No order as to costs
- On appeal from
- High Court of Kenya (Machakos) - Ruling of Mbogo J
- Jurisdiction invoked
- Order 42 Rules 6(1) and (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, "Robert Muli Matolo v Attorney General & 2 others [2019] KEELC 3066 (KLR)", Case Analysis (2019). Application dated 26th September, 2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3066/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.