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ELCDismissedNotice of Motion dated 14th October 2019 (suit number not stated in the judgment)· [2020] KEELC 2248 (KLR)

Mwangi Stephen Muriithi v Daniel T. Arap Moi & another [2020] KEELC 2248 (KLR)

Environment and Land Court of Kenya
4 June 2020
DOD. O. Ohungo
1,158 words in judgment
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The bottom line

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A Nakuru court refused to pause a costs-taxation pending appeal, ruling the two-year delay and lack of demonstrated loss made the application hopeless.

What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 14th October 2019 seeking a stay of further proceedings, including taxation of party and party bills of costs, pending his appeal to the Court of Appeal (Nakuru Civil Appeal No. 20 of 2018) against a ruling of 21st September 2017 striking out the suit as res judicata with costs to the defendants. The application was anchored on Sections 1A, 1B and 3A of the Civil Procedure Act. The defendants opposed, arguing lack of jurisdiction over taxation, inordinate delay, and failure to demonstrate substantial loss. The court first held that it had jurisdiction: the bills of costs were party and party bills filed in the same suit pursuant to its own costs order, distinguishable from the advocate-client bills addressed in the defendants' authorities, which fall under the Advocates Act and Remuneration Order. On the merits, the court found no substantial loss since the costs were untaxed, the quantum unknown, and any payment refundable if the appeal succeeded. The application, filed over two years after the order appealed from, suffered from inordinate delay; the explanation that typed proceedings were being pursued was rejected as no typed proceedings were needed for this application. The motion was accordingly dismissed with costs to the defendants. The ruling was delivered remotely on 4th June 2020 under the Chief Justice's COVID-19 practice directions, the court noting that the first defendant's death during the pendency of the ruling did not halt delivery since substitution and abatement do not arise in execution proceedings.

Key legal issues

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01

Jurisdiction to stay taxation of party and party costs

Holding

The court has jurisdiction; authorities on advocate-client bills were distinguishable because the taxation here flows from a costs order made in this very suit

Reasoning

The bills of costs were filed in the same suit pursuant to the court's own order for costs following striking out the suit as res judicata. They are party and party bills, not advocate-client bills filed as miscellaneous causes under the Advocates Act. The authorities relied on by the defendants concerned advocate-client taxation, a different scenario, so the objection to jurisdiction failed.

p. 2
02

Substantial loss

Holding

No substantial loss shown because costs are untaxed, quantum unknown, and presumably refundable if the appeal succeeds

Reasoning

The applicant's assertion that he would suffer an unjust and oppressive outcome was treated as a claim of substantial loss. The court found no basis for it: taxation had not occurred, the amount was unknown, and there was no suggestion the defendants would not refund any sum paid should the appeal succeed.

p. 3
03

Delay

Holding

A delay of over two years in filing the application was inordinate and disentitled the applicant to stay

Reasoning

The application was filed more than two years after the order of 21st September 2017. The explanation that typed proceedings were being pursued was rejected because no typed proceedings were necessary to bring this application before the same court. The delay was therefore unexplained and fatal to the application.

p. 3

Legal principles established

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  • The court retains jurisdiction to stay proceedings including taxation of party and party costs ordered in the same suit, distinguishing advocate-client taxation
  • Inordinate delay in applying for stay disentitles the applicant to the orders sought
  • Substitution and abatement do not arise in proceedings in execution of a decree or order

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 14th October 2019
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 24 rule 10; Order 42 Rule 6(2)
  • Advocates ActAdvocates Remuneration Order, paragraph 11

Cases cited (4)

  • KTK Advocates v CPF Financial Services Limited
    [2018] eKLR
  • Kenya Pipeline Company Limited v Nyamongo & Nyamongo Advocates
    [2006] eKLR
  • M G Sharma v Uhuru Highway Development Limited
    [2001] eKLR
  • Lubullellah & Associates Advocates v Nasser Ahmed t/a Airtime Business Solutions
    [2010] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (interlocutory application in a suit first instituted before the court)

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, "Mwangi Stephen Muriithi v Daniel T. Arap Moi & another [2020] KEELC 2248 (KLR)", Case Analysis (2020). Notice of Motion dated 14th October 2019 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2248/eng@2020-06-04

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