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ELCDismissedNot stated in the judgment as provided· [2022] KEELC 1520 (KLR)

Lucia Wanjiku Muiruri v Naomi Waithira Wanyoike [2022] KEELC 1520 (KLR)

Environment and Land Court
9 February 2022
BEB M Eboso
1,074 words in judgment
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The bottom line

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A Kenyan court dismissed a stay application because costs had already been taxed—parties must apply for stay of execution, not stay of proceedings, to halt enforcement.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (Eboso J) determines an application dated 22 February 2021 by the respondent in a concluded appeal, seeking a stay of further proceedings pending an intended appeal to the Court of Appeal. The underlying appeal had been allowed by Gacheru J on 8 January 2020, setting aside a lower court award of Kshs 915,823, dismissing the plaintiff's claim, and awarding costs of both the lower court and the appeal to the plaintiff. The applicant, aggrieved, filed an appeal in the Court of Appeal and sought to halt the taxation and execution of costs awarded against her. The application, brought under Order 22 rule 22 and Order 42 rule 5(1) and (2), was opposed on grounds that taxation had already been concluded, that the court lacked jurisdiction, and that the application was an abuse of process. Applying the criteria in Ringera J's decision in Global Tours & Travel Limited - the interest of justice, expeditious disposal, arguability of the intended appeal, judicial time and expedition - the court found that taxation of the appellant's bill of costs had concluded on 8 September 2021 and a certificate of costs issued on 11 November 2021, leaving no pending judicial proceedings capable of being stayed. The court further observed that the applicant should have sought a stay of execution under Order 42 rule 6(2) rather than a stay of proceedings. The application was dismissed with costs to the appellant.

Key legal issues

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01

Whether the applicant met the criteria for a stay of proceedings pending appeal

Holding

The application failed because taxation had concluded and no proceedings remained pending; a stay of proceedings order has no operative function in those circumstances

Reasoning

The court adopted the Global Tours & Travel criteria: interest of justice, expeditious disposal, arguability of the intended appeal, scarcity of judicial time and expedition of the application. Final judgment had been rendered in the appeal on 8/1/2020; the appellant's bill of costs was taxed on 8/9/2021 and a certificate issued on 11/11/2021, leaving no pending judicial proceedings capable of being stayed.

p. 2
02

Whether the applicant had invoked the correct procedural mechanism

Holding

Stay of execution, not stay of proceedings, was the appropriate remedy against enforcement of the costs award, and the applicant had not applied for it

Reasoning

The court distinguished between stay of proceedings and stay of execution. Since only enforcement of the decree (taxed costs) remained, the applicant ought to have applied under Order 42 rule 6(2) and demonstrated the requisite criteria for stay of execution. The application before the court was confined to stay of proceedings and could not be converted into one for stay of execution.

p. 2

Legal principles established

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  • Whether to grant a stay of proceedings pending appeal is a judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the intended appeal, judicial time and expedition of the application
  • Where there are no pending judicial proceedings, there is no basis for an order of stay of proceedings; a party seeking to halt enforcement of a costs decree must move for stay of execution under Order 42 rule 6(2)

Court orders

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  1. 1.The application dated 22/2/2021 is dismissed for lack of merit
  2. 2.The respondent in this appeal shall bear costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure RulesOrder 42 rule 5(1) and (2)
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (3)

  • MWK v JDK
    (2020) eKLR, Kerugoya HCA No. 93 of 2019
  • Global Tours Travellers Ltd
    Nairobi H.C Winding up Cause No 43 of 2020 [sic]
  • Nadeem A Kana v Lucy Wambui Mwangi
    (2021) eKLR
On appeal from
Court of Appeal
null
Jurisdiction invoked
Order 22 rule 22 and Order 42 rule 5(1) and (2) of the Civil Procedure Rules (as cited by the applicant); the court determined the application under its jurisdiction to grant stay of proceedings 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, "Lucia Wanjiku Muiruri v Naomi Waithira Wanyoike [2022] KEELC 1520 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1520/eng@2022-02-09

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