Harjot Singh Dhanjal v Attorney General & Kenya Railways Corporation (Petition 19 of 2019) [2021] KEELC 3625 (KLR)
The bottom line
#Kenya Railways lost its bid to delay paying court costs because its appeal was filed too late and it showed no actual loss.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 22 Rule 22 was the correct basis for a stay of execution
Order 22 Rule 22 applies only where a decree has been sent for execution and was inapplicable as no decree had been extracted; Order 42 Rule 6 was the applicable provision
The court noted that Order 22 Rule 22 governs stay of execution of a decree by a court to which the decree has been sent for execution. Since no decree had been extracted in the matter, that provision did not apply, and the proper provision for stay pending appeal was Order 42 Rule 6, whose conditions of substantial loss, no unreasonable delay and security the applicant had to satisfy.
Whether the applicant demonstrated substantial loss
No; the applicant merely alleged irreparable loss without describing the loss or its inability to recover costs if the appeal succeeded
Despite asserting irreparable loss and damage in its supporting affidavit, the applicant did not identify the loss it would suffer nor aver that costs paid would be irrecoverable should the appeal succeed. The respondent pointed out that the applicant had recourse to a reference to the High Court after taxation. The court therefore found the substantial-loss limb of Order 42 Rule 6(2)(a) unsatisfied.
Whether there was a valid appeal to anchor the stay
No; the notice of appeal was filed three months after the ruling without leave, breaching Rules 74 and 75 of the Court of Appeal Rules, so there was no valid appeal
The ruling was delivered on 29th April 2020 but the notice of appeal was dated 20th July 2020 and filed on 27th July 2020, well outside the fourteen-day period in Rules 74 and 75 of the Court of Appeal Rules 2010. No extension of time was shown. Further, no draft or memorandum of appeal was attached, so the court could not assess the arguability of the intended appeal.
Whether taxation proceedings could be stayed
No; the court has no jurisdiction to stay proceedings before the taxing master, and costs not yet ascertained mean there is nothing to stay
Following Fulchand M. Shah v Panachand J Shah, the court held that jurisdiction over costs is vested in the taxing master, with grievances taken to the High Court by reference. Since the costs payable had not been ascertained, no order capable of being stayed existed, and no irreparable loss was shown.
Legal principles established
#- A stay of execution under Order 42 Rule 6 requires substantial loss, absence of unreasonable delay and security; substantial loss must be demonstrated, not merely alleged
- A notice of appeal filed outside the fourteen-day period prescribed by Rules 74 and 75 of the Court of Appeal Rules without leave results in there being no valid appeal
- A court cannot stay taxation proceedings before the taxing master; disputes arising from taxation go to the High Court by way of reference
Court orders
#- 1.The application is dismissed with costs
- Jurisdiction invoked
- Order 22 Rule 22 and Order 51 of the Civil Procedure Rules 2010 and section 39 of the Civil Procedure Act (application for stay pending appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harjot Singh Dhanjal v Attorney General & Kenya Railways Corporation (Petition 19 of 2019) [2021] KEELC 3625 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 20th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3625/eng@2021-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.