Samuel Waiya Githukurio v Stephen Mungai Waita & 3 others [2020] KEELC 343 (KLR)
The bottom line
#The Environment and Land Court at Nakuru granted a conditional stay of execution of taxed costs, but only if the applicant deposits security and files his appeal quickly.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss warranting stay of execution of taxed costs
The Applicant failed to demonstrate the substantial loss he would suffer; he merely stated he would suffer loss without particulars
Relying on Mukuma v Abuoga and Kenya Shell Ltd v Kibiru, the court held it was incumbent on the Applicant to demonstrate the kind of substantial loss he would suffer if stay was not granted, since stay denies a successful litigant the fruits of judgment. The Applicant did not give sufficient cause for the discretion to be exercised in his favour on this limb.
Whether the application was brought without undue delay
The application filed 7 days after taxation was not brought with undue delay
The court found that the application was filed 7 days after the bill of costs was taxed on 7th May 2020, which did not amount to undue delay under Order 42 Rule 6.
Whether security for due performance of the decree had been offered
The Applicant was willing to avail security; security under Order 42 guarantees due performance of the decree, not punishment of the judgment debtor
Adopting Arun C Sharma v Ashana Raikundalia, the court held that security under Order 42 rule 6 serves to guarantee due performance of the decree as may ultimately bind the Applicant. Finding no evidence of prejudice to the Respondents, the court granted a conditional stay in the interest of justice.
Whether the replying affidavit of a non-party could oppose the application
Naomi Njoki Mungai was not joined as a party and had no locus standi; her replying affidavit and submissions were struck out
At the time of filing the replying affidavit and written submissions, Naomi Njoki Mungai had not been joined as a party to the suit. Being a stranger to the proceedings, she had no locus standi to oppose the application, and the application was therefore treated as unopposed.
Legal principles established
#- Taxation of costs is part of the execution process, complete with its provisions for stay of execution, under the Civil Procedure Rules
- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory (as expressed in Mukuma v Abuoga)
- A party who has not been joined to the suit is a stranger with no locus standi to oppose an application
Court orders
#- 1.Stay of execution of the taxed costs awarded on 7th May 2020 pending the hearing and determination of the Appeal, on condition that the Applicant shall within 30 days deposit Kshs.100,000/- in a joint earning interest account
- 2.The Applicant shall lodge an Appeal against the taxed costs within 14 days
- 3.The Applicant shall within 30 days compile, file and serve upon the Respondents a complete record of Appeal
- 4.In default of any of the above conditions the stay shall automatically lapse
- 5.Costs to abide the outcome of the Appeal
- 6.The replying affidavit dated 13th August 2020 and written submissions of 16th September 2020 of Naomi Njoki Mungai struck out
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Waiya Githukurio v Stephen Mungai Waita & 3 others [2020] KEELC 343 (KLR)", Case Analysis (2020). Not stated in the ruling (application dated 14th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/343/eng@2020-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.