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ELCPartially AllowedNot stated in the judgment text provided· [2024] KEELC 7234 (KLR)

Orego & Odhiambo t/a Orego & Odhiambo Advocates v China Road & Bridge Corporation (Environment & Land Miscellaneous Case E118 of 2023) [2024] KEELC 7234 (KLR)

High Court of Kenya
29 October 2024
2,576 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed an appeal to proceed only if the losing party paid half the judgment debt within 45 days.

What this practically means

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Executive summary

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This ruling of the High Court at Nairobi (M.D. Mwangi, J) determined the Client/Applicant's Notice of Motion dated 7th June 2024 seeking stay of execution of the judgment delivered on 9th May 2024, which had dismissed the Client's Reference against a Taxing Master's Ruling on the Advocate's Bill of Costs and allowed entry of judgment in the taxed sum of Kshs. 28,352,112.66. The prayer for leave to appeal to the Court of Appeal was unopposed and was granted on 1st July 2024, leaving only the stay application. The Advocate/Respondent opposed, contending that no substantial loss had been demonstrated, that no security had been offered, and that any paid sums were recoverable if the appeal succeeded. The court framed one issue: whether the Applicant had met the conditions in Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security. Applying Edward Kamau, Vishram Ravjiltalai, James Wangalwa, Century Oil, Aron C. Sharma, Mwaura Karuga and Gianfranco Manenthi, the court held that the application was filed timeously, but that the Client failed to establish substantial loss, since a substantial decretal amount alone does not amount to substantial loss, and that the Client offered no security. Balancing the Client's right of appeal against the Advocate's right to enjoy the fruits of judgment, the court granted a conditional stay: the Client to pay the Advocate Kshs. 14,176,056/= (50% of taxed costs) within 45 days, failing which the stay stands discharged automatically. No order as to costs.

Key legal issues

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01

Substantial loss

Holding

The Applicant failed to establish substantial loss; the fact that the decretal amount is substantial does not of itself amount to substantial loss

Reasoning

The Court applied the James Wangalwa and Century Oil authorities, holding that execution is a lawful process and the Applicant must show execution would irreparably affect the essential core of its case. All the Client stated was that the decretal amount was substantial, which falls short of demonstrating that the appeal would be rendered nugatory.

p. 4
02

Unreasonable delay

Holding

The application was filed timeously without undue delay

Reasoning

The Ruling sought to be appealed was delivered on 9th May 2024 and the application was filed on 7th June 2024; both parties agreed the application was filed without undue delay.

p. 5
03

Security

Holding

The Applicant did not offer security, but in balancing the parties' interests the court granted a conditional stay requiring payment of 50% of the taxed costs

Reasoning

The court adopted the Aron C. Sharma and Mwaura Karuga authorities that security under Order 42 is to guarantee due performance of the decree. Since the Applicant offered no security but the right of appeal had to be protected, the court fashioned a conditional stay: payment of Kshs. 14,176,056/= within 45 days, failing which the stay lapses automatically.

p. 6
04

Leave to appeal

Holding

Leave to appeal was unopposed and was granted on 1st July 2024; the ruling concerns only the stay application

Reasoning

The Advocate did not oppose the prayer for leave to appeal against the Ruling of 9th May 2024, and leave was granted on 1st July 2024, leaving only the stay application for determination.

p. 2

Legal principles established

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  • The High Court's discretion to grant stay of execution pending appeal under Order 42 Rule 6 is fettered by three conditions: sufficient cause, substantial loss and furnishing of security, and the application must be made without unreasonable delay
  • The mere fact that execution is in motion or likely does not amount to substantial loss

Court orders

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  1. 1.A conditional order of stay of execution of the decree granted, on condition that the Client pays the Advocate 50% of the taxed costs, Kshs. 14,176,056/=, within forty-five (45) days from the date of the ruling
  2. 2.Failing payment within 45 days, the order of stay of execution to stand discharged without further reference to the court
  3. 3.No order as to the costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 25
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (8)

  • Edward Kamau & Another -vs- Hannah Mukui Gichuki & Another
    [2015] eKLR
  • Tanui Robert & Another -vs- Jessica Adikinyi Afwande
    [2021] eKLR
  • Vishram Ravjiltalai -vs- Thornton & Turnip
    (Civil Application No. Nai 15 of 1990 [1990] KLR 365
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    [2012] eKLR
  • Century Oil Trading Company Ltd vs. Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates & 4 Others
    (2014) eKLR
  • Mwaura Karuga t/a Limit Enterprises Vs. Kenya Bus Services Ltd & 4 Others
    [2015] eKLR
  • Gianfranco Manenthi & Another –vs- Africa Merchant Assurance Company Ltd
    [2019] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Orego & Odhiambo t/a Orego & Odhiambo Advocates v China Road & Bridge Corporation (Environment & Land Miscellaneous Case E118 of 2023) [2024] KEELC 7234 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7234/eng@2024-10-29

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