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ELCPartially AllowedNot stated in judgment (Busia ELC application under certificate dated 11th August 2020)· [2021] KEELC 2636 (KLR)

Simon Erot Ajeko & another v Lydia Amoit Otigil [2021] KEELC 2636 (KLR)

Environment and Land Court
14 July 2021
AOA. Omollo
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs/Applicants, who lost a suit decided on 25th September 2018, applied by notice of motion dated 11th August 2020 for a stay of execution of a decree for taxed costs of Kshs.154,889.60 awarded to the Defendant following taxation before the Deputy Registrar on 14th August 2019, pending an appeal they had lodged. They argued that their former counsel had died, that the appeal would be rendered nugatory and they would suffer irreparable loss without a stay, that execution had been initiated, and that the appeal had high chances of success; they offered to deposit part of the decretal sum into a joint interest-earning account. The Defendant did not file a response but opposed in submissions, contending there was no proof the appeal would be rendered nugatory, doubting the existence and vigour of the appeal given the lapse of over two years since the notice of appeal, and urging that any stay be conditioned on deposit of the entire decretal sum. The court set out the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules - substantial loss, absence of unreasonable delay and security - and applied the discretionary guidance in Butt v Rent Restriction Tribunal and the principle in Machira v East African Standard that a successful party is entitled to the fruits of judgment. Noting the Applicants' unexplained delay and their failure to participate in the taxation, the court granted a conditional stay: the Applicants to deposit the taxed costs of Kshs.154,889.60 in a joint escrow account in the names of the parties' advocates within 60 days, failing which execution would proceed with proceeds paid into the escrow account. Costs of the application were to abide the winner of the appeal.

Key legal issues

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01

Whether the conditions in Order 42 Rule 6(2) for stay of execution pending appeal were met

Holding

Stay was granted but conditional on the Applicants depositing the taxed costs of Kshs.154,889.60 into a joint escrow account within 60 days, failing which execution would proceed

Reasoning

The court found the Applicants had not explained a two-year delay in filing the application after judgment and one year after taxation of costs. Weighing the interests of both parties, and guided by Butt v Rent Restriction Tribunal and Machira v East African Standard, the court granted stay only on terms protecting the successful party through an escrow deposit, with execution to proceed on default.

p. 2
02

Whether the Respondent's submission on the Applicants' delay and doubtful appeal defeated the application

Holding

The delay was noted and unexplained, but the court exercised discretion to grant a conditional stay rather than dismissing the application outright

Reasoning

The Respondent did not file a reply, and argued no proof of the appeal being rendered nugatory and that any appeal was a victim of laches after two years. The court acknowledged the unexplained delay but, balancing the parties' interests and the discretionary principles in Butt, granted stay conditioned on security rather than refusing it.

p. 2

Legal principles established

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  • No order for stay of execution shall be made unless substantial loss is shown, the application is made without unreasonable delay, and security for due performance of the decree is given
  • A successful party is ordinarily entitled to the fruits of his judgment, and stay applications must balance the interests of both parties

Court orders

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  1. 1.Stay of execution of the decree pending appeal is granted
  2. 2.The Plaintiffs/Applicants shall deposit the taxed costs of Kshs.154,889.60 in a joint escrow account in the names of the advocates for the parties on record, to be held pending hearing and determination of the appeal, within 60 days of the ruling
  3. 3.In default of the deposit, execution shall proceed and amounts realised deposited into the escrow account
  4. 4.The costs of the application to abide the winner in the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 46 Rule 6(2)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)

Cases cited (3)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Victory Construction vs. BM (minor suing through next friend one PMM)
    2019 eKLR
  • Machira T/A Machira & Co. Advocates vs East African Standard
    [2002] KLR 63
Jurisdiction invoked
Order 42 Rule 6 (2) and Order 46 Rule 6 (2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Simon Erot Ajeko & another v Lydia Amoit Otigil [2021] KEELC 2636 (KLR)", Case Analysis (2021). Not stated in judgment (Busia ELC application under certificate dated 11th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2636/eng@2021-07-14

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