Kamau v Wanyoike & 16 others (Environment and Land Appeal 65 of 2019) [2022] KEELC 3407 (KLR)
The bottom line
#The High Court in Thika stopped execution of a costs judgment, but only after the appellant posts KShs 450,000 security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the application
The application was brought without unreasonable delay, filed about 22 days after the party and party bill of costs.
The court compared the date the party and party bill of costs was filed (November 24, 2021) with the date of the application (December 17, 2021) and found the interval of about 22 days to satisfy the requirement of no unreasonable delay under Order 42 rule 6.
Substantial loss
The applicant proved substantial loss, being the cash outlay he must pay as party and party costs if execution ensues, which he may not recover if his appeal succeeds.
The applicant swore that the respondents would not be able to refund the costs if paid and if the appeal succeeded. The respondents did not respond to this averment, so the evidential burden, having shifted, was not discharged. The court held that payment of party and party costs constitutes substantial loss in the circumstances.
Security for the due performance of the decree
Security was imposed in the sum of Kshs 450,000/-, by way of a bank guarantee approved by the respondents or an equivalent cash deposit in an interest-earning joint account.
Despite the applicant's submission that the land itself should be adequate security, the court, in balancing the applicant's right to pursue the appeal against the respondents' right to enjoy the fruits of judgment, granted the stay conditioned on the furnishing of specified security within 30 days, with dismissal in default.
Legal principles established
#- Where the applicant has reasonable grounds, disclosed in the application, for believing the respondent cannot refund the decretal sum, the evidential burden shifts to the respondent, though the legal burden remains on the applicant.
- Execution alone does not constitute substantial loss; the applicant must lead evidence demonstrating the specific substantial loss likely to be suffered.
Court orders
#- 1.The applicant to give security of costs to cover the payment of party and party fees in the sum of Kshs 450,000/- within a period of 30 days
- 2.The security to be in the form of a bank guarantee from a reputable bank with prior approval of the Respondents or in the alternative a deposit of cash equivalent to Kshs 450,000/- in an interest earning account in the names of the learned counsels for the applicant and the 2nd - 17th respondents
- 3.In default of (a) and (b) above the application shall stand dismissed with no further orders from the Court
- 4.Costs of this application shall be in favour of the Respondents
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules, sections 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Wanyoike & 16 others (Environment and Land Appeal 65 of 2019) [2022] KEELC 3407 (KLR)", Case Analysis (2022). Notice of motion dated December 16, 2021 (arising from appeal filed 7/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3407/eng@2022-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.