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ELCDismissedNotice of Motion dated 25th May 2021 (appeal against Judgment of the Principal Magistrates' Court dated 29th April 2021)· [2022] KEELC 1842 (KLR)

James Muhindi Machira v Symon Ndoria Kabucwa & another [2022] KEELC 1842 (KLR)

High Court of Kenya
3 February 2022
1,401 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to pause a costs order, confirming that paying lawfully awarded court costs is not 'substantial loss' justifying a stay of execution.

What this practically means

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Executive summary

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The Appellant, James Muhindi Machira, moved the High Court at Nyeri by Notice of Motion dated 25th May 2021 under Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the judgment and decree of the Principal Magistrates' Court dated 29th April 2021 pending appeal. In the suit below, the Appellant had sought cancellation of title to LR No. Magutu/Gathehu/1153, vacant possession, and general damages for fraudulent conversion and trespass. The trial court dismissed his suit with costs, finding the allegations of fraud unproved. Both Respondents opposed the stay application: the 1st Respondent argued there was nothing to stay since the suit was merely dismissed and costs unassessed, while the 2nd Respondent contended that recovery of costs is a lawful process that cannot amount to substantial loss. The court found the application timely but held the Appellant failed to demonstrate substantial loss or that the appeal would be rendered nugatory. Adopting the principles in James Wangalwa and Century Oil Trading, the court reasoned that ordinary recovery of lawfully awarded costs does not constitute substantial loss, and the Appellant did not establish any other factors showing irreparable effect. The application was dismissed with costs to the Respondents on 3rd February 2022.

Key legal issues

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01

Whether the Appellant demonstrated substantial loss

Holding

The Appellant failed to demonstrate substantial loss or that execution would render the appeal nugatory; mere execution for costs does not qualify

Reasoning

The court adopted the established principle that execution is a lawful process and does not by itself amount to substantial loss. The applicant must show other factors demonstrating that execution would irreparably affect or negate the essential core of the appeal. The Appellant, whose suit was dismissed with costs only, failed to discharge this burden.

p. 2
02

Whether the application was brought without unreasonable delay

Holding

The application was timely, having been lodged less than a month after the judgment of 29th April 2021

Reasoning

The court found this condition satisfied, noting the Memorandum of Appeal and the application were lodged less than one month after the decision sought to be stayed.

p. 2

Legal principles established

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  • The conditions in Order 42 Rule 6(2) share an inextricable bond such that the absence of one will affect the exercise of the Court's discretion in granting stay
  • Recovery of costs lawfully awarded at the end of litigation cannot amount to substantial loss under Order 42 Rule 6(2)

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 25th May 2021 seeking stay of execution

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (sub-rules (1) and (2))

Cases cited (4)

  • Mukuma -vs- Abuoga
    (1988) KLR 645
  • James Wangalwa & Another -vs- Agnes Naliaka Cheseto
    (2012) eKLR
  • Silverstein -vs- Chesoni
    (2002) 1 KLR 867
  • Century Oil Trading Company Limited -vs- Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
On appeal from
Principal Magistrates' Court
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "James Muhindi Machira v Symon Ndoria Kabucwa & another [2022] KEELC 1842 (KLR)", Case Analysis (2022). Notice of Motion dated 25th May 2021 (appeal against Judgment of the Principal Magistrates' Court dated 29th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1842/eng@2022-02-03

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