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ELCDismissedNot stated in the judgment· [2022] KEELC 2855 (KLR)

Kayser Investment Limited v Bamburi Special Products Limited & 2 others (Environment & Land Case 534 of 2018) [2022] KEELC 2855 (KLR)

High Court of Kenya
28 April 2022
1,978 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to pause a costs hearing because the party waited ten months and never showed it would actually suffer loss.

What this practically means

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Executive summary

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This ruling of the High Court at Nairobi, delivered by L. Komingoi J on 28th April 2022, determined a Notice of Motion dated 30th August 2021 in which the Plaintiff/Applicant sought a stay of further proceedings in the suit, including the taxation of the Defendant's bill of costs, pending the hearing and determination of an appeal against the ruling of 15th October 2020 which dismissed its suit and awarded costs. The application was supported by an affidavit of Dorothy Mbaye and opposed by the 1st Respondent through an affidavit of Waeni Ngea; the 2nd and 3rd Respondents filed no response, and the motion was canvassed by written submissions. The Applicant argued that its memorandum of appeal raised arguable grounds, that the application was filed expeditiously, and that it stood to lose property (LR NO 1/299) if wrongly attached or sold. The 1st Respondent countered that the application was brought ten months after the orders, was an afterthought aimed at delaying taxation, and that no substantial loss was demonstrated since any sums paid could be recovered from a public listed company. Applying Order 42 rule 6(2) of the Civil Procedure Rules and the settled principles in Feissal Amin Janmohammed t/a Dunvia Forwarders, Visharm Ravji Halai and Antoine Ndiaye, the court found the ten-month delay unexplained and the Applicant's demonstration of substantial loss wanting. The application failed the requirements of Order 42 rule 6(2) and was dismissed with costs to the 1st Defendant/Respondent.

Key legal issues

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01

Whether the application for stay of proceedings was brought without unreasonable delay

Holding

The application, filed on 30th August 2021 against orders of 15th October 2020, was brought after an unreasonable delay of ten months with no explanation

Reasoning

The orders dismissing the suit were delivered on 15th October 2020, but the notice of motion was not filed until 30th August 2021. The court found this to be a ten-month gap constituting unreasonable delay under Order 42 rule 6(2), and noted that no explanation for the delay was offered by the Applicant.

p. 4
02

Whether the Applicant demonstrated substantial loss

Holding

The Applicant failed to demonstrate how taxation of the bill of costs would affect its appeal or cause it substantial loss

Reasoning

The court agreed with the 1st Respondent that the Applicant had not shown how taxation of the bill of costs dated 21st June 2021 would affect its appeal. Since the 1st Respondent is a public listed company whose records are publicly available, the Applicant would be able to recover any sums paid should its appeal succeed, so no substantial loss was demonstrated.

p. 5
03

Whether the statutory conditions for stay under Order 42 rule 6(2) were satisfied

Holding

None of the conditions for stay of execution under Order 42 rule 6(2) was met

Reasoning

The court set out the well-established three-pronged test: expeditious filing, substantial loss, and security for due performance of the decree. Having found unreasonable delay and no demonstration of substantial loss, and no evidence of security having been furnished, the court concluded the application failed the requirements of Order 42 rule 6(2) and dismissed it.

p. 4

Legal principles established

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  • An applicant for stay of execution or proceedings pending appeal must establish that the application was brought without undue delay, that substantial loss will result unless stay is granted, and must furnish security for the due performance of the decree
  • The applicant for a stay must place before the court material and information demonstrating a risk of suffering loss if stay is not granted

Court orders

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  1. 1.The Notice of Motion dated 30th August 2021 is dismissed with costs to the 1st Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 42 rule 6; Order 51 rule 1

Cases cited (16)

  • Nation Media Group & Another vs William Kimutai B. Keitany
    [2017] eKLR
  • Moses C. Muhia Njoroge & 2 Others vs Jane W. Lesaloi & 5 Others
    [2014] eKLR
  • Global Tours & Travels Ltd; Nairobi HC Winding Up Cause No 43 of 2000
  • Edward Muchiri Ituma vs Beatrice Wangige & 9 Others
    [2019] eKLR
  • Christopher Ndolo Mutuku & Another vs CFC Stanbic Bank Ltd
    [2015] eKLR
  • Mohammed Salim t/a Choice Butchery vs Nassepuma Memon Jamal
    [2013] eKLR
  • MS Port Reitz Maternity vs James Karanja Kabia
    CA No 63 of 1997
  • RWW vs EKW
    [2019] eKLR
  • Absalom Dova vs Tarbo Transporters
    [2013] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    (2012] eKLR
  • Kenya Shell Ltd vs Kibiru & Another
    CA No 97 of 1986
  • National Industrial Credit Bank Ltd vs Aquinas Francis Wasike
    Civil Application No 238 of 2005
  • Feissal Amin Janmohammed t/a Dunvia Forwarders vs Shami Trading Co Ltd
    [2014] eKLR
  • Visharm Ravji Halai vs Thornton & Turpin [1963] Ltd
    [1990] KLR 365
  • Antoine Ndiaye vs African Virtual University
    [2015] eKLR
  • Andrew Kuria Njuguna vs Rose Kuria
    (Nairobi) Civil Case No 224 of 2001 (unreported)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010

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, "Kayser Investment Limited v Bamburi Special Products Limited & 2 others (Environment & Land Case 534 of 2018) [2022] KEELC 2855 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2855/eng@2022-04-28

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