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ELCDismissedELC Suit (Nairobi) - Notice of Motion dated 24th June 2019· [2021] KEELC 1432 (KLR)

Jeneby Arap Too v Sato Properties Limited & another [2021] KEELC 1432 (KLR)

Environment and Land Court
12 October 2021
1,651 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (S. Okong'o, J) on a Notice of Motion dated 24th June 2019 in which the Plaintiff (Applicant) sought a stay of execution of a decree on costs taxed at Kshs. 2,593,105/- awarded to the Defendants following his withdrawal of the suit on 26th June 2018. The Applicant argued that he had instituted the suit in his own name on behalf of Antow Trading Company Limited because the company had been dissolved at the time; that the company, since restored, had filed ELC No. 93 of 2018 over the same subject matter; and that execution would cause him irreparable harm, including an insolvency petition filed against him. The application was principally anchored on Order 22 Rule 25 of the Civil Procedure Rules. The 1st Respondent opposed, contending that the suit had ended, that no suit was pending between the Applicant and itself, and that the Applicant was a distinct legal person from the company. The court applied Tom Ojienda & Associates v Nairobi City County Assembly, holding that Order 22 Rule 25 requires a pending suit between the same parties. Since ELC No. 93 of 2018 was instituted by Antow Trading Company Limited, a separate and distinct legal personality, there was no pending suit between the Applicant and the 1st Respondent. The court also found no irreparable harm since the outcome of that suit could not absolve the Applicant from paying the costs ordered against him personally. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether the conditions in Order 22 Rule 25 of the Civil Procedure Rules for a stay of execution were met

Holding

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

Reasoning

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.

p. 3
02

Whether the Applicant would suffer irreparable harm absent a stay

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 24th June, 2019 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 51

Cases cited (1)

  • Tom Ojienda & Associates v Nairobi City County Assembly
    [2017] eKLR
Jurisdiction invoked
Order 22 Rule 25 of the Civil Procedure Rules; inherent jurisdiction of the court over execution of its own decree

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, "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.