Kayser Investment Limited v Bamburi Special Products Limited & 2 others (Environment & Land Case 534 of 2018) [2022] KEELC 2855 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application for stay of proceedings was brought without unreasonable delay
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
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.
Whether the Applicant demonstrated substantial loss
The Applicant failed to demonstrate how taxation of the bill of costs would affect its appeal or cause it substantial loss
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.
Whether the statutory conditions for stay under Order 42 rule 6(2) were satisfied
None of the conditions for stay of execution under Order 42 rule 6(2) was met
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 30th August 2021 is dismissed with costs to the 1st Defendant/Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.