Masidza (Suing as the widow and personal representative of the late Clement Festus Masidza (Deceased)) v Wafula & 4 others (Environment & Land Case 46 of 2018) [2022] KEELC 2836 (KLR)
The bottom line
#A Bungoma court refused to pause cost proceedings against a losing land litigant, confirming that appeal pending doesn't shield you from paying costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss to justify a stay of taxation pending appeal
The Applicant failed to demonstrate substantial loss; her claim of irreparable loss was speculative since the bill had not been taxed and no evidence showed the Respondents could not refund taxed costs.
The court held substantial loss is the cornerstone of a stay application and must be demonstrated with evidence, not merely alleged. The Applicant only asserted irreparable loss in general terms. Taxation itself could not prejudice her, the amount allowable was unknown, and no evidence showed the 2nd and 3rd Respondents were impecunious and unable to refund costs should the appeal succeed.
Whether the application was filed without unreasonable delay
A delay of approximately four months between judgment (20th September 2021) and the application (31st January 2022), unexplained, was unreasonable.
The court accepted that undue delay is not defined by law and depends on the circumstances of each case, but found the Applicant offered no explanation for the four-month delay, filing only after the Respondents filed their Bill of Costs. The court inferred the application was a belated, bad-faith attempt to delay the Respondents' enjoyment of the fruits of their judgment.
Whether stay can be granted in respect of a bill of costs not yet taxed
No; stay cannot be granted in respect of taxed costs, and a fortiori not in respect of an untaxed bill of costs.
Relying on the Court of Appeal's decision in Francis Kabaa v Nancy Wambui & Jane Wanjiru, the court held that even where costs have been taxed, stay is not granted because a successful appellant would be refunded the costs. It followed a fortiori that there was even less justification for staying the taxation of a bill that had not yet been taxed.
Legal principles established
#- An applicant for stay of execution must satisfy all the conditions in Order 42 Rule 6: sufficient cause, substantial loss, no unreasonable delay, and offer of security.
- Substantial loss is the cornerstone of an application for stay of execution and must be demonstrated, not merely alleged.
- Stay of execution cannot be granted in respect of costs, a fortiori a bill of costs not yet taxed.
Court orders
#- 1.The Notice of Motion dated 31st January 2022 is dismissed with costs to the 2nd and 3rd Respondents
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masidza (Suing as the widow and personal representative of the late Clement Festus Masidza (Deceased)) v Wafula & 4 others (Environment & Land Case 46 of 2018) [2022] KEELC 2836 (KLR)", Case Analysis (2022). Bungoma ELC Case (Notice of Motion dated 31st January 2022 arising from plaint dated 6th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2836/eng@2022-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.