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ELCDismissedBungoma ELC Case (Notice of Motion dated 31st January 2022 arising from plaint dated 6th August 2018)· [2022] KEELC 2836 (KLR)

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)

Environment and Land Court
28 June 2022
2,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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Leah Egehiza Masidza, whose suit seeking cancellation of titles over land parcels East Bukusu/south Kanduyi/12919, 12920 and 12921 was dismissed with costs on 20th September 2021, lodged a Notice of Appeal and later an appeal being Kisumu Court of Appeal Civil Appeal No 222 of 2021. After the 2nd and 3rd Respondents filed a Bill of Costs dated 29th December 2021, she moved the Environment and Land Court at Bungoma by Notice of Motion dated 31st January 2022, premised on Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of the taxation of the bill pending the appeal. The 2nd Respondent, with the authority of the 3rd, opposed the application as premature, speculative and an abuse of process, noting the bill had not been taxed and that they could refund any costs paid if the appeal succeeded. Boaz N. Olao J restated the four conditions for stay under Order 42 Rule 6: sufficient cause, substantial loss, absence of unreasonable delay, and offer of security, all of which must be met. He found the Applicant had shown sufficient cause by filing her appeal and was willing to offer security, but failed on the cornerstone requirement of substantial loss, having merely alleged irreparable loss without demonstrating its nature; taxation could not prejudice her, and no evidence showed the Respondents were unable to refund taxed costs. He further held a four-month unexplained delay was unreasonable, and that, in any event, stay cannot be granted in respect of costs, a fortiori an untaxed bill of costs. The Notice of Motion was dismissed with costs to the 2nd and 3rd Respondents on 28th June 2022.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss to justify a stay of taxation pending appeal

Holding

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.

Reasoning

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.

p. 5
02

Whether the application was filed without unreasonable delay

Holding

A delay of approximately four months between judgment (20th September 2021) and the application (31st January 2022), unexplained, was unreasonable.

Reasoning

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.

p. 5
03

Whether stay can be granted in respect of a bill of costs not yet taxed

Holding

No; stay cannot be granted in respect of taxed costs, and a fortiori not in respect of an untaxed bill of costs.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 31st January 2022 is dismissed with costs to the 2nd and 3rd Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (4)

  • Vishram Ravji Halai v Thornton & Turpin
    [1963] 1990 KLR 365
  • Kenya Shell Ltd v Benjamin Kibiru & another
    1986 KLR 410
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    2018 eKLR
  • Francis Kabaa v Nancy Wambui & Jane Wanjiru
    CA Civil Application No 298 of 1996
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, "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.