Benjamin Kimaiyo Itok v National Land Commission & 2 others [2020] KEELC 299 (KLR)
The bottom line
#The court refused to pause payment of legal costs pending appeal, ruling that paying taxed costs is not 'substantial loss' and a four-month delay killed the application.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss under Order 42 Rule 6
The only consequence facing the Plaintiff is payment of taxed costs, which does not constitute substantial loss
The suit had been struck out on limitation grounds, leaving only costs payable by the Plaintiff. Citing Deposit Protection Fund v Rosaline Njeri, the court held that taxation of a bill of costs or demand for taxed costs does not amount to substantial loss. Even if costs were taxed and paid and the Plaintiff later succeeded on appeal, reimbursement could be ordered, and there was no evidence the 3rd Defendant was a person of straw.
Unreasonable delay
A delay of over four months in filing the stay application, unexplained, was unreasonable
Though the application was dated 26th May 2020, it was not filed until 24th June 2020, over four months after the ruling of 19th February 2020. The Plaintiff, though represented by Counsel, filed his Notice of Appeal on 2nd March 2020 but waited until 24th June 2020 to move for stay. The court drew on Mohsen Ali v Priscillah Boit and concluded the delay was designed to delay taxation of the 3rd Defendant's bill of costs.
Legal principles established
#- Taxation of a bill of costs or demand for payment of taxed costs does not amount to substantial loss under Order 42 Rule 6
- What constitutes unreasonable delay depends on the circumstances of each case
Court orders
#- 1.The Plaintiff's Notice of Motion dated 26th May, 2020 and filed on 24th June, 2020 is dismissed with costs
- 2.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kimaiyo Itok v National Land Commission & 2 others [2020] KEELC 299 (KLR)", Case Analysis (2020). Notice of Motion dated 26th May, 2020 (E&L Court suit, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/299/eng@2020-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.