Jeneby Arap Too v Sato Properties Limited & another [2021] KEELC 1432 (KLR)
The bottom line
#A Kenyan court refused to pause collection of legal costs because the applicant's company, not the applicant himself, had filed the related lawsuit.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions in Order 22 Rule 25 of the Civil Procedure Rules for a stay of execution were met
The provision does not apply because although there is a decree in favour of the 1st Respondent against the Applicant, there is no pending suit by the Applicant against the 1st Respondent
Order 22 Rule 25 requires a pending suit against the decree-holder in the name of the person against whom the decree was passed. Relying on Tom Ojienda & Associates v Nairobi City County Assembly, the court noted it requires two suits between the same parties. Here the pending suit ELC No. 93 of 2018 is by Antow Trading Company Limited, a separate legal entity, not the Applicant. The instant suit was withdrawn on 26th June 2018, so nothing is pending between the Applicant and the 1st Respondent.
Whether the Applicant would suffer irreparable harm absent a stay
No irreparable harm was established because the Applicant is not a party to ELC No. 93 of 2018 and its outcome cannot affect his liability for costs
The Applicant premised irreparable harm on the pending ELC No. 93 of 2018 and an insolvency petition. The court held that the pending suit is between Antow Trading Company Limited and Sato Properties Limited and another; the Applicant is not a party to it. Therefore, whatever its outcome, it cannot absolve the Applicant from paying the costs ordered personally against him in the withdrawn suit.
Legal principles established
#- Order 22 Rule 25 applies only where there are two suits between the same parties: a decree in one suit and a pending suit between the decree-holder and the decree-holder's debtor in the other
- A limited liability company is a separate and distinct legal personality from its director; a suit by the company is not a suit by the director, and vice versa
Court orders
#- 1.The Notice of Motion dated 24th June, 2019 is dismissed with costs to the 1st Respondent
- Jurisdiction invoked
- Order 22 Rule 25 of the Civil Procedure Rules; inherent jurisdiction of the court over execution of its own decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeneby Arap Too v Sato Properties Limited & another [2021] KEELC 1432 (KLR)", Case Analysis (2021). ELC Suit (Nairobi) - Notice of Motion dated 24th June 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1432/eng@2021-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.