Ali v Said (Environment and Land Appeal E002 of 2022) [2024] KEELC 3346 (KLR)
The bottom line
#The Isiolo Environment and Land Court paused an earlier ruling and cost taxation pending appeal, but only after the appellant deposits Kshs. 500,000 as security within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant satisfied the conditions for stay of execution and stay of taxation proceedings pending appeal
The application was granted subject to the appellant depositing Kshs. 500,000/= as security for costs within 21 days, failing which the stay lapses automatically.
The court noted the appellant filed a Notice of Appeal on 14/12/2022 within the statutory time, and that the respondent remains in occupation of the suit land deriving income from it, so the respondent would not be unduly inconvenienced by the stay. Although the appellant made no commitment to deposit security, Order 42 Rule 6 does not expressly require such a commitment; the court, if inclined to grant stay, must order a deposit for security of costs.
Whether the absence of a commitment to deposit security for costs is fatal to an application under Order 42 Rule 6
It is not fatal; the rule does not expressly require such a commitment, but the court is required to order a deposit for security of costs should it be inclined to grant a stay.
The respondent argued the application should fail because the appellant made no commitment to pay security. The court agreed no commitment was made but held that Order 42 Rule 6 does not expressly demand one; instead, where the court is minded to grant a stay, it must itself order a deposit for security of costs, which it did by directing Kshs. 500,000/= within 21 days.
Whether the delay in filing the application (over 10 months after the ruling) disentitled the appellant
The delay was not fatal, as the appellant had filed a Notice of Appeal within the statutorily stipulated time and the respondent was in occupation of the suit land deriving income.
The respondent contended that the application, filed on 25th October 2023 over 10 months after the ruling of 5th December 2022, was made with unreasonable delay. The court did not treat this as disqualifying, instead weighing the totality of circumstances: a timely Notice of Appeal had been filed and the respondent continued in occupation of the land earning income, so granting the stay caused no undue inconvenience.
Legal principles established
#- Order 42 Rule 6 does not expressly require an applicant to commit to depositing security for costs, but the court must order a deposit for security of costs if inclined to grant a stay.
- A court of law must consider the totality of the circumstances of each case, as cases are not congruent in their facts and circumstances.
Court orders
#- 1.Prayer 1 granted: stay of the ruling and all consequential orders delivered by Hon. Justice P.M Njoroge in Environment and Land Court at Isiolo Civil Appeal No. E002 of 2022 on 5th December 2022 pending determination of the Court of Appeal at Nyeri, Civil Appeal No. COACA/167/22
- 2.Prayer 2 granted: stay of the taxation proceedings by way of Defendant's Party to Party Bill of Costs dated 26th September 2023
- 3.The appellant shall deposit with the court within 21 days of delivery of the ruling a sum of Kshs. 500,000/= as security for costs, failing which the stay granted for prayers 1 and 2 shall automatically lapse
- 4.Costs shall abide the eventual outcome
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali v Said (Environment and Land Appeal E002 of 2022) [2024] KEELC 3346 (KLR)", Case Analysis (2024). Environment and Land Court at Isiolo Civil Appeal No. E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3346/eng@2024-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.