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ELCDismissedNotice of Motion dated 28/01/2020 (suit particulars not stated in extract)· [2021] KEELC 1854 (KLR)
Michael Achieng Deya-Okong’o & another v Joseph Obuge Ongota & another [2021] KEELC 1854 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court ruled that losing your job doesn't justify pausing a costs hearing while you appeal, so the application was dismissed with costs.
What this practically means
#Executive summary
#The 2nd plaintiff/applicant, Cornel Oduor Omondi, moved the Environment and Land Court at Kisumu by Notice of Motion dated 28/01/2020, premised on Order 42 Rule 6 of the Civil Procedure Rules 2010 and Sections 1A, 3A and 63 of the Civil Procedure Act, seeking a stay of taxation of the decree holder's bill of costs scheduled for 30/01/2020 and of subsequent proceedings pending the hearing and determination of his intended appeal against the judgment delivered on 27/06/2019. He relied on his supporting affidavit sworn on 28/01/2020, contending that a notice of appeal was filed on 9/07/2019, proceedings had not been typed, and that being unemployed he would suffer substantial loss if taxation proceeded, while the respondent would suffer no prejudice. The 1st defendant/respondent opposed through grounds of opposition filed on 4/02/2020, describing the application as incompetent, defective and an abuse of process, and contending that no hardship or loss was described. The court framed one issue: whether the applicants met the requirements for stay of taxation proceedings pending appeal. Relying on Order 42 Rule 6 and authorities including Silverstein v Chesoni, Ndolo Mutuku v CFC Stanbic Bank and James Wangalwa v Agnes Naliaka Cheseto, the court held that the applicant's unemployment did not amount to substantial loss, that employment status is relevant only at execution, and that any loss could be compensated by costs. Noting the quantifiable sum of Kshs. 149,095/- and that a reference to the court was available for taxation grievances, the court found no special circumstances and dismissed the application with costs to the 1st defendant/respondent. The ruling was delivered electronically on 30 September 2021 due to COVID-19 restrictions.
Key legal issues
#01
Whether the conditions in Order 42 Rule 6 for stay pending appeal were met
Holding
The conditions were not met; the applicant failed to demonstrate substantial loss, and no special circumstances justified staying taxation of costs
Reasoning
The court applied Order 42 Rule 6(2), requiring substantial loss, absence of unreasonable delay and security. The applicant's only ground was unemployment, which the court held relates at most to execution, not to stay of taxation. Loss, if any, would be compensable by costs, and any grievance over taxation could be raised by reference.
p. 3
Legal principles established
#- An appeal does not operate as an automatic stay of execution or proceedings; the court appealed from may order stay for sufficient cause
- Inability to pay because of unemployment does not amount to substantial loss for purposes of stay
- Each application for stay of proceedings depends on its own facts
- If there are issues arising from taxation, a party can file a reference to the court
Court orders
#- 1.The application dated 28/01/2020 is dismissed with costs to the 1st Defendant/Respondent
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules 2010 and Sections 1A, 3A and 63 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Achieng Deya-Okong’o & another v Joseph Obuge Ongota & another [2021] KEELC 1854 (KLR)", Case Analysis (2021). Notice of Motion dated 28/01/2020 (suit particulars not stated in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1854/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.