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ELCDismissed· [2022] KEELC 3637 (KLR)

Odhiambo & 2 others v Okoth (Personal Representative of the estate of Timothy Masingo Ojewu (Deceased) ) & another (Environment & Land Case 23 of 2020) [2022] KEELC 3637 (KLR)

High Court of Kenya
25 July 2022
AOA Omollo
1,530 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to pause cost payments pending appeal because the applicants proved no substantial loss and offered no security.

What this practically means

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Executive summary

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The applicants moved the court by notice of motion dated March 29, 2022 under section 3A of the Civil Procedure Act seeking a stay of execution of the judgment of November 11, 2021 in relation to costs, until Kisumu Court of Appeal Civil Appeal No 2 of 2022 was heard and decided, with costs of the motion in the cause. They argued, through the affidavit of Maurice Akula Opanyi, that the respondents lacked capacity to refund the taxed costs if the appeal succeeded, that the money was owed to the respondents' advocate under the Advocates Remuneration Order rather than by the advocate, and that they faced arrest and detention in civil jail. The respondents opposed the application as incompetent for non-compliance with order 9 rule 9 of the Civil Procedure Rules, and as frivolous since costs cannot be the subject of a stay. The court framed two issues: whether execution of costs can be stayed, and whether the application offended order 9 rule 9. On the first, the court applied the order 42 rule 6(2) conditions and the Vishram Ravji Halai test, holding that the applicants failed to demonstrate substantial loss or offer security, and that costs follow the event under section 27, having been taxed with no reference filed. On the second, though finding a contravention of order 9 rule 9, the court held the omission curable as a procedural technicality under article 159(2)(d) since it did not bar the previous advocate from taxing advocate-client costs. The notice of motion was dismissed with no order as to costs.

Key legal issues

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01

Whether execution of a costs order can be stayed pending appeal

Holding

The stay was refused: the applicants failed to demonstrate substantial loss or offer security, and although a binding Court of Appeal decision holds that stay cannot be granted in respect of costs, the court exercised its discretion under sections 3 and 3A of the Civil Procedure Act against the applicants

Reasoning

Order 42 rule 6(2) requires substantial loss, absence of unreasonable delay and security. The applicants pleaded inability to pay, yet costs had been taxed and no reference filed; pursuing an appeal while claiming inability to pay undermined their case. No security was offered. The court suggested the fear could be cured by an order that costs be deposited in a joint account pending the appeal, but declined to grant a stay outright.

p. 4
02

Whether the application offended order 9 rule 9 of the Civil Procedure Rules

Holding

Although the applicants contravened order 9 rule 9 by changing advocates without a court order or consent after judgment, the omission was not fatal because it did not bar the previous advocate from taxing advocate-client costs; it was a curable procedural technicality under article 159(2)(d)

Reasoning

Order 9 rule 9 requires a change of advocate after judgment to be effected by court order or filed consent. The applicants invoked constitutional articles 25(c), 50(1) and 159(2)(a,d,e). Following Lalji Bhimji Shangani Builders, failure to follow procedure without justification is deliberate; nonetheless the court found the omission did not defeat the purpose of the rule regarding taxation of the former advocate's costs and cured it under the overriding objective.

p. 4

Legal principles established

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  • A party who does not comply with order 9 rule 9 of the Civil Procedure Rules on change of advocate commits a curable procedural technicality under article 159(2)(d) of the Constitution where the matter is already concluded
  • Inability to pay combined with no offer of security makes it difficult for the court to exercise discretion in favour of a stay of execution

Court orders

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  1. 1.The applicants' notice of motion dated March 29, 2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsections 3 and 3A
  • Civil Procedure Actsection 27
  • Civil Procedure Rules, 2010order 42 rule 6(2)
  • Civil Procedure Rules, 2010order 9 rule 9
  • Constitution of Kenya, 2010article 159(2)(d)
  • Constitution of Kenya, 2010articles 25(c), 50(1) and 159(2)(a,d,e)

Cases cited (4)

  • Vishram Ravji Halai & another v Thornton & Turpin [1963] LTD
    [1990] KLR 365
  • Francis Kabaa v Nancy Wambui and Anr
    Nairobi Civil Application No 298 of 1996
  • Aron C Sharma v Ashana Raikundalia T/A Rairundalia & Co Advocates
  • Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi
    [2012] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power of the court)

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, "Odhiambo & 2 others v Okoth (Personal Representative of the estate of Timothy Masingo Ojewu (Deceased) ) & another (Environment & Land Case 23 of 2020) [2022] KEELC 3637 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3637/eng@2022-07-25

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